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1 



THE 



ENCYCLOPAEDIA 



or 



PLEADING AND PRACTICE 



UNDER THE CODES AND PRACTICE ACTS, 

AT COMMON LAW, IN EQUITY 

AND IN CRIMINAL CASES 



COMPILBD UNDER THE EDITORIAL 8UPSRTI8I0N OF 

WILLIAM M. McKINNEY. 



Vol. XVIII. 



NORTHPORT, LONG ISLAND, N. Y. 

EDWARD THOMPSON COMPANY, Law Publishers. 

1900. 



• I 



Copyright, 1900, 

BY 

BDWARD THOMPSON Ca 



Aii rights r€urv€d. 



TABLE OF TITLES. 



Titles in italies are cross-references only. 



Rehearing, i. 

Rejoinders and Subsequent 
Pleadings, 70. 

Relators^ Z%, 

Release, ^. 

Reliefs 99. 

Religious Societies, 99. 

Remand^ 108. 

Remedy at Law, 108. 

Remittitur, 123. 

Removal of Causes, 150. 

Removal of Cloudy 427. 

Rendition and Entry of Judg- 
ments, 427. 

Reni^ 489. 

Repleader, 489. 

Replevin, 494. 

Replications and Replies, 639. 

Report and Case Made, 725. 

Repugnancy, 738. 

Requests to Find^ 744. 

Res Judicata^ 744. 

Rescission, Cancellation, and 
Reformation of Contracts, 

744- 



Rescript^ 869. 

Rescue^ 869. 

Reserved Case^ 869. 

Resisting Officer^ 869. 

Restitution, 869. 

Restraining Order^ 898. 

Retraxit, 898. 

Returns, 901. 

Revenue^ 989. 

Review, 989. 

Revival of Judgments, 1053. 

Revivor of Suits and Actions, 

1094. 
Reward, 1151. 
Right of Property, Trial of, 

II 64. 
Riot, 1196. 

Riparian Rights, 1213. 
Robbery, 12 17. 
Ruie, 1235. 

Rules of Court, 1235. 
Rules of Decision^ 1272. 
Sabbathy 1272. 



The Encyclopedia 



OF 



Pleading and Practice. 



REHEARING. 

By Charles H. Street. 

I. XBHEASIKOB IK EaUITT, 4. 

I. In General^ 4. 

a. When Decree May Be Corrected by Rehecuring^ 4. 

b. What Decrees May Be Rehear dy 5. 

c. Allowance of Rehearings^ 5.- 
1, Grounds^ 7. 

a. Error Apparent on Face of Decree^ 7. 

b. Material Facts Overlooked^ 9. 

c. Newly Discovered Evidence^ 9. 

d. Matters Not in Issue on Hearing j 1 1. 

e. Mistakes and Omissions in Presenting Case on Hearings 

II. 

^i) In General^ 11. 

*2) Improper Exclusion of Evidence y 12. 

(3) Negligence^ Mistake^ or Misconduct of Counsel^ 

13- 

(4) Absence of Party from Hearings 14. 

/. Decree Rendered by Divided Court ^ 14. 

g. Decree Obtained by Frauds 14. 

h. Reversal of Judgment on Which Decree Is Faunded^x/^. 

3. By Whom Rehearing May Be Had^ 15. 

4. To Whom Application Should Be Made^ 15. 

5. Time of Making Application^ 16. 

a. Before Enrolment or Entry of Record^ 16. 

b. Before End of Term, 17. 

c. Before Decree Acted upon or Time to Appeal Passed^ i8. 

d. Time Prescribed by Statute^ 18. 

e. Subsequent Action on Petition Filed Within Statutorv 
Period, 20. 

6. How Application Is Made, 20. 
a. In General, 20. 

X8 Encyc. PL & Pr. — i 1 Volume XVIII. 



% 



REHEARING. 

b. Form and Contents of Petition^ ai, 

c. Certificate of Counsel^ 24. 

d. Notice of the Application^ 24. 

e. Security for Costs, 25. 

7. Motion to Take Petition from Files, 25. 

8. Practice on Rehearing^ 2^. 

a. How Far Case Is Open, 25. 

b. What Evidence May Be Introduced, 26. 

c. Order of Argument, 26. 

9. Relief Granted, 26. 

10. Effect on Original Decree, 27. 

a. Of Petition Filed, 27. 

b. Of Petition Entertained by Court, 27. 

c. Of Order Granting Rehearing, 27. 

1 1 . Subsequent Rehearings, 2 7 . 

n. Beheariho of Appeals, 28. 

1. In General, 28. 

a. Power to Grant, 28. 

b. What Decisions May Be Reheard, 30. 

c. Allowance of Rehearing, 7^1, 

2. Grounds, 31. 

a. Error in the Decision — In General, 31. 

(1) Error of Law or Misapprehension of Fcuts, 31. 

(2) Erroneous Reasons for Correct Decision, 34. 

(3) Decision Based on Points Not Raised Below, 34. 

b. Material Point Overlooked — Conflict with Statute or 

Controlling Decision, 35. 
(i) In General, 35. 

(2) Points in Record Not Called to Courfs Attention, 

37. 
3) Points Not Directly Referred to in Opinion, 38. 

4S What Decisions Are Controlling, 38. 

^5) Enactment of Statute After Submission of Cause, 

39- 
<• Points Not Considered on Hearing, 39. 

(i) In General, 39. 

(a) Grounds Not Involved in Any Issue Determined 

by Judgment, 42. 

(3) Grounds Inconsistent with Position Assumed on 
Hearing, 42. 

d. Imperfect Presentation of Case on Hearing, 43. 
(i^ Important Point Not Argued, 43. 

'2) Surprise, Accident, or Mistake, 45. 

J) Misconduct, Absence, or Negligence of Counsel, 

45- 
€. That Record Before Court on Appeal Was Erroneous, 

46. 
/. Importance of Question Involved, 48. 
g. Decision Rendered by Divided Court, 49. 
\ Probable Alteration of Decision on Reargument Before 

Court Differently Constituted, 50. 

2 Volume XVIII. 



t 



8 



REHEARING. 

'i\ Change in Membership of Courts 50. 

>) Death of Judge, 50. 

(3) Court Not Legally Constituted, 50. 
/. Death of a Party to the Action, 50. 
y. Newly Discovered Evidence, 5 1 . 
k. Judgment Obtained by Fraud, 51. 

3. By Whom Rehearing May Be Had, 51. 

4. To Whom Application Should Be Made, 52. 

5. Time qf Making Application, 52* 

a. Before End of Term, 52. 

b. Before Case Has Been Remanded, 53. 
f. Time Prescribed by Statute, 54. 

</. Right Waived by Gross Laches, 55. 
e. Subsequent Action on Petition Filed Within Statutory 
Period, 55. 

6. How Application Is Made, 56. 

a. In General, 56. 

b. Form and Contents of Petition, 57. 

c. Briefs and Citations of Authorities^ 58. 

d. Certificate of Counsel, K^Z, 

e. Notice, and Service of Copies, 59. 

7. Hearing and Determination of the Application, 59. 

a. In General, 59. 

b. Modification of Original Judgment on Hearing of Peti" 

tion, 59. 
r. Petition Dismissed or Stricken from Files, 60. 

8. Prcutice on the Rehearing^ 60. 

a. Methods of Argument, 60. 

b. How Far Ca^e Is Open, 61. 

r. New Questions and Amended Records^ 61. 

9. Relief Granted, 61. 

10. Ejfect on Original Judgment, 63. 

fl. Cy Petition Filed, 63. 

^. 65/ Order Granting Reheari?tg^ 63. 

r. Cy Relief Granted on Reargument, 64. 

11, Subsequent Rehearings, 64. 

XIL Stattttory Beheabivqs at Law nr Covbtb of OBienrAL 

JUBISDIOTIOV, 65. 

1. In General, 65. 

2. Grounds, 65. 

3. 7i>«^ ^/ Making the Application, 67. 

4. How Application Is Made, 67. 

a. In General, 67. 

^. Essential Averments of Petition, 67. 

5. Objections to Sufficiency of Petition, 67. 

6. Decision of the Application, 68. 

IT. EsmABnrGS nr Adxikaltt, 68. 

V. XXHlABIHeB OF HABEAS COBPV% MAVBAXtJ^ AVD OSBTIOBABIp 

69. 

% Volame XVIII. 



Belieariiigt in Equity. REHEARING. In 0«MraL 

CROSS-REFERENCES. 

As to Rehearing or New Trial of Issues to the Jury^ see article 
ISSUES TO THE JURY, vol. ii, p. 599. 

Rehearing of Motions, see article MOTIONS, vol. 14, p. 173 
et seq. 

Rehearing s in Suits for the Infringement of Patents, see article 
PATENTS, vol. 16, p. 149 et seq. 

Rehearing of Preliminary Examinations, see article PRELIM- 
INARY EXAMINATION, vol. 16, p. 870. 

Rehearing of References, see article REFERENCES, vol. 17, 
p. 978. 
And see in general article NEW TRIAL, vol. 14, p. 707. 

I Beheabings IH Equity — 1. In General — ^7. When Decree 
May Be Corrected by Rehearing. — A rehearing is one of the 
methods commonly employed for the correction of error in a 
decree. Whether or not it is the proper method in a given case 
depends upon the stage of the proceedings at which correction is 
sought, and upon the nature of the error involved. It is the only 
proper method where a final decree has been rendered, but not 
signed and enrolled, and where the error is material, that is to 
say, not merely clerical or accidental.* 

Before Enrolment. — Thus, while an interlocutory decree may some- 
times beset aside on motion — "the distinction between cases 
where it can be done by motion and where it must be by petition 
not being clearly defined " * — a final decree cannot be altered in 
any material respect, before enrolment, without a rehearing.* 

1. Finlayson v. Lipscomb, 15 Fla. where a bill was filed by the executor 

558; McGregor v, Gardner, 16 Iowa of a decedent for the construction of a 

538; Robertson v. Maclin, 4 Hayw. will and the administration of the 

(Tenn.) 53; Bolger v, Mackell, 5 Ves. estate under the direction of the court, 

Jr. 510. it was held that a decree which referred 

8. Fowler z/. Lewis, 36 W. Va. 129. the cause to one of the commissioners 

See also Kendrick v, Whitney, 28 of the court to take, state, and report 

Gratt. (Va.) 646. to the court an account of the transac- 

Deoree Ordering Aooount. — A petition tions of the executor, and of the debts 

for a rehearing is not necessary in order against the estate, might be reheard 

to modify an interlocutory decree order- upon petition, since it was in its nature 

ing an account. Pulliam v, Pulliam, an interlocutory decree, although it 

10 Fed. Rep. 53. proceeded to construe the will, and to 

An Opinion Given in the Progress of an declare in what manner the estate 

Aoconnt, upon exceptions to a report, or should be distributed. Sims v, Sims, 

instructions to a commissioner, as to 94 Va. 580. 

the propriety of allowing items of debit 8. Hendricks v, Robinson, 2 Johns, 

or credit, is not equivalent to a final de- Ch. (N. Y.) 484; Fanning v, Dunham, 

cree, and a party is not precluded from 4 Johns. Ch. (N. Y.) 35: Ray v, Connor, 

taking new evidence without obtaining 3 Edw. (N. Y.)478; Goodhue c/. Church- 

a review or rehearing of the opinion, man, i Barb. Ch. (N. Y.) 596; In re 

Dunbar v. Woodcock, 10 Leigh (Va.) Salter, 4 Deac. & C. 569; Atty.-Gen. v, 

660. Croft, 15 Jur. 1028; Fyler v, Fyler, 8 

In Virginia interlocutory decrees are Jur. 211; Brookfield v, Bradley, 2 Sim. 

generally modified by means of a re- & St. 64. 

hearing obtained by oetition. Purdie Xodification on Petition Without Formal 

r. Jones, 32 Gratt. (Va.) 827. Thus Sehearing. — In McLane v. Piaggio, 24 

4 Volume XVIH. 



iehaaringi in Equity. REHEARING. In General 



Enrolment. — On the other hand, after enrolment according 
to English chancery practice, or after entry of record by any pro- 
cess corresponding to enrolment in the United States, a bill of 
review is necessary for the correction of material error, and a 
reliearing does not lie.* 

^. What Decrees May Be Reheard. — a ]>eoree for coits oniy 

may be reheard in special cases where good reasons are shown 
why the application should be granted, but not otherwise.* 

A. Seoree lEade by Consent of ConnBol cannot be impeached by a 
reHea^ring, even though it was made without consent of the party 
for \;vliom counsel appeared,' except in a case where reasons exist 
sufficient to authorize setting aside the consent or agreement by 
virtue of which the decree was rendered.* 

€r. Allowance of REHEARINGS. — Under the EngUsh Ckaneery 
Pr&ettee rehearings were generally granted as a matter of course 
upon the certificate of counsel to the effect that the case ought 
to t>e reheard.* 

Fl^- 71, after a final decree had been heard, the petitioner being present at 

enterctl, a petition for a rehearing was the hearing with counsel, and was dis- 

file<| "^v iihin the statutory time, and it missed by the court on motion of the 

was beld that the court, upon hearing adverse party. Thereafter the peti- 

sach petition, might modify the decree tioner took no further steps to obtain a 

by correcting an error which the chan* rehearing for more than eight months, 

ccllor discovered therein, and which and, without filing any paper reserving 

^^^ a.dtnitted by the complainant, or insisting upon any supposed right 

although a formal rehearing was de- to a rehearing of the main question, 

"'^^- took part in repeated hearings before 

«>• Hughs 7'. Washington, 65 111. different justices of the court, and be- 

^» I'hompson p. Goulding, 5 Allen fore the master, upon motions of the 

IJ^^ss.) 81; Robertson v, Maclin, 4 plaintiff in execution of the original de- 

"*yw^. (Tenn.) 53: Groom v, Stinton, cree. It was held that by these acts 

I' J*ir, 895; Atty.-Gen. v, Stamford, 6 the petitioner, whatever his secret be- 

fZ-^ ^7' And see infra^ I. 5. Time lief or intention might have been, had 

^^ *^^Mng Application. in legal effect conclusively waived any 

■^ to Mis of Saview, see article Bills right to a rehearing upon the merits of 

j^*^fiViEVV, vol. 3, p. 569. the original decree. 

ytr" l^ravis v. Waters, i Johns. Ch. (N. Hot Barred by Consent Order Sendered 

r^ '^ ; Eastburn er. Kirk, 2 Johns. Ch. After Decree. — Although a decree made 

^ ^ * •) 317. by consent cannot be reheard, a decree 

Y?" Foster v. Clark, 2 Ch. Sent. (N. which is in reality the finding and judg- 

/-pl^ 38 ; Jones r-. Williamson, 5 Coldw. ment of the court upon the bill, an- 

2 '^^-) 371; Bradish v. Gee, Ambl. swer, proofs, and exhibits in the case 

^^" Contra^ Buck r. Fawcett, 3 P. is not, properly speaking, a consent 

S.*- 242. decree, and the fact that an interlocu- 

]}^^K^t Waived by LAehee Sabieqnent to tory order subsequently made upon the 

j?^JJ» — In Winchester v. Winchester, foot of said decree is rendered by con- 

^ ^^ss. 127, a decree was made with sent will not prevent the impeaching 

^j^-^^osent of the petitioner's counsel, of the decree. Wilcox v. Wilcox, i 

jj^^^^^id counsel afterward declined to Ired. Eq. (N. Car.) 36. 

I *^^ affidavits in support of petitions 4. Ex p, Gresham, 82 Ala. 359; 

, ^ rehearing in the case. The Hodges v. McDuff, 76 Mich. 303. 

v^^itioncr, although immediately in- 6. Gwynne v. Edwards, 9 Beav. 22; 

J'^^^cl of the entry of the decree, filed Blount z». Great Southern, etc., R. Co., 

. . t^^Ution for a rehearing, baton the i Ir. Ch. 590; Cunyngham v, Cunyng- 

*^^*cth day thereafter entered an ham, Ambl. 89; White v, Fussell, I 

*VPcal. This appeal was afterwards Ves. & B. 151. 

5 Volume XVIII. 



XahMringt in Equity. REHEARING. Ib Q«MnL 

iB the Vnlud Itotop, in view of the vexatious delays consequent 
upon this practice, courts of equity have refused to adopt the 
English rule,^ and rehearings are not granted as a matter of righty 
except in cases provided for by statutes or rules of court.* 

DiBoretion of Court. — In all other cases the allowance of a rehear* 
ing rests wholly in the discretion of the court.' This discretion, 
however, is not an arbitrary one, and it should be exercised 
liberally in favor of granting a rehearing where the application is 
supported by the certificate of responsible counsel, and where 
there are good reasons for believing that the decree is erroneous, 
and that a further hearing will advance the ends of justice.* 

1. In the Federal Conrtf a rehearing North Hudson County R. Co., 26 Fed. 

will not be granted on the mere certifi- Rep. 411. 

cate of counsel. American Diamond tororofLaw. — Thus a rehearing wiU 

Rock Boring Co. v. Sheldon, i Fed. be granted if the court thinks that th^ 

Rep. 870; Emerson v, Davies, i Woodb. case ought to be reheard, even thoagb 

& M. (U. S.) 21; Tufts V. Tufts, 3 the error alleged is simply an error of 

Woodb. & M. (U. S.)426. law. Shepard v. Taylor, 16 R. I. 166, 

8. Land v. Wickham, i Paige (N. Y.) citing Hodges v. New England Screw 

356; Field V. Schieffelin, 7 Johns. Ch. Co., 3 R. I. 9. 

(N. Y.) 250. PoUoj to Enoourage Behearingt. — In 

In the Court of Equity of Florida, which Kendrick v. Whitney, 28 Gratt. (Va.) 
is a court of original jurisdiction, re- 646, the court said: " The policy of the 
hearings are a matter of right, resting law is to encourage petitions lor a re- 
in the discretion of the court, subject hearing as cheaper and more expedi- 
to appeal, and are most uniformly tious than the expensive remedy by 
allowed. Internal Imp. Fund r. Bailey, appeal; and the courts ought to give 
10 Fla. 238. to the statute such an interpretation 

Ezoeptioii in Favor of Vonresident as will preserve this mode of proceed* 

Defendant. — In Mississippi^ where a ing according to the long-established 

nonresident defendant against whom a course of the courts, rather than to 

decree has been rendered by publica^ compel parties to await a hnal decree* 

tion only petitions for a rehearing and and then incur the expense of appeals, 

brings his case within the provisions of or to lie down under interlocutory de- 

the code which authorize rehearings in crees grossly unjust and illegal.'* 

such cases, the statute confers a right Stipnlation Providing for Rehearing En- 

of which he cannot be deprived by the forced. — In Auditor-Gen. v. Smith, 95 

court. When the facts required by Mich. 132, two decrees were made in 

the code are shown, the discretion of the Circuit Court in suits involving the 

the court ceases, the right to a rehear- same questions and between the same 

ing becomes absolute, and it must be parties. One of these suits was ap- 

granted. McAllister v. Plant, 49 Miss, pealed to the Supreme Court, and it 

628. was stipulated between the parties that 

8. Lyon v. Boiling, 14 Ala. 753; New in the event of a reversal of the decree 
Jersey Zinc Co. v. New Jersey Frank- by the Supreme Court the appellant 
Unite Co., 14 N. J. Eo. 308; Field v, should have ten days after such re- 
Schieffelin, 7 Johns. Ch. (N. Y.) 250; versal within which to applv for a re- 
Land V. Wiclcham, i Paige (N. Y.) 256; hearing of the other decree in the Cir- 
Johnson v. Tucker, 2 Tenn. Ch. 244; cuit Court. The decree having been 
Daniel v. Mitchell, i Scory (U. S.) T98; reversed, it was held that the stipula- 
American Diamond Rock Boring Co. tion was binding, and that a rehearing 
V. Sheldon, i Fed. Rep. 870, must be granted in accordance there- 

4. Lntt f. Grimont. 17 111. App. 308; with. 

Hoggatt V, Hunt, Walk. (Miss.) 216; Where Rehearing Would Prodnee Kifl- 

Cotton V, Parker, Smed. & M, Ch. ehief. — In Hughes z/. Jones, 2 Md. Ch. 

(Miss.) 125; New Jersey Zinc Co. v, 289, it was held that the court might 

New Jersey Frankfinite Co., 14 N. J. look into all the circumstances of the 

£q. 308; Railway Register Mfg. Co. v, case, and if, upon full consideration, it 

6 Volume XVIII. 



in Equity. REHEARING. CrMudi. 

Sevitw of DiMretioii, — The decision of the court granting or refus- 
ings 2L rehearing is final, and it is not reviewable by appeal * or by 
mandamus.* 

a. ©rounds— rt. Error Apparent on Face of Decree. — A 

rehearing will generally be granted when a decree is erroneous on 
its face, or where the court fears that it may have made a mistake 
in its decision of the case.' 

came to the conclusion that rehearing discretion could not be reviewed by the 

the ca. use would be productive of mis- Supreme Court. 

chief to innocent parties, or that for Hor Can tlie teme Covt* at a »ubM- 

any other reason it would be inexpedi- quent term, vacate an order which it 

ent. it might refuse the application, has previously made denying an appU* 

aJtbou^b the facts set up by the peti- cation for a rehearing. Coate9 v, Cun» 

tion. if admitted, would vary the de- ningham, loo 111. 463. 

crce. 2. £xp, Greeham, 83 Ala. 359. 

CiroajBitaacee Wamuitiiig laterposition 8. Pingree f . Coflin, 12 Gray(MaM.) 

^ Coiart.— In support of a petition for 268; Attv.-Gen. v. New York, etc.* R« 

a rehearing it is not sufficient to show Co., 24 \i, J. Eq. 50; Andrews v. Cren« 

that ifii'usiice has been done, but it sbaw, 4 Heisk. (Tenn.) 151; Hill v, 

Qiust^ also appear that it occurred un* Southern R. Co., (Tenn. Ch. 1897) 49 

<lcr circumstances which authorize the S. W. Rep. 888; Canerdy v. Baker, 55 

court to interfere. Walsh v, Smyth, 3 Vt. 578; American Diamond RockBor- 

Bland (Md.) 9. ing Co. v. Sheldon, i Fed. Rep. 870. 

1- I^yon V. Boiling, 14 Ala. 753; Analogous to Hew TriaL — A rehear* 

^*'/>. Gresbam, 83 Ala. 359; Waring v, ing in a suit in equity will be granted 

Turtofi, 44 Md. 535; Jacobs v. Beal- for very nearly the same reasons that 

^^^K", 41 Md. 484; Crane v. Judik, 86 a new trial at law would be granted. 

Md. ^3; Read v. Patterson, 44 N. J. Bentley v, Phelps, 3 Woodb. & M, (U. 

^^- 211; Roddy's Appeal, 99 Pa. St. S.) 403. 

^^: Galloway v. Dunnington, 10 Lea Decree Containing Xrronoonf Inftni9» 

^.^^n.)2i8; Roemer v. Bernheim, 132 tioni to a Kafter. — After a master in 

^' ?' 103; McLeod V. New Albany, 66 chancery has made a report in accord- 

'^^- Rep. 378. ance with a decree in the case, a party 

^^ SuUivan v, Boston Bar Assoc, who considers himself aggrieved by 

^h^ ^ass. 504, it was held on appeal to such report, and who believes that the 

ttie Supreme Court that after the Supe- instructions given to the master by the 

"Or Court had rendered a decree it was chancellor, in the decree which ordered 

"'^^liound, on a motion for a rehearing, the reference, were erroneous, may 

^^ ^ear arguments respecting the facts, take exceptions and bring the point to 

^^ ^^ consider questions of law in re- the attention of the chancellor. If, on 

^Pcct to which exceptions had not been the argument of these exceptions, it is 

^aved ; and the Supreme Court refused made to appear that justice cannot be 

I? Review a decision of the Superior effected without the alteration of the 

^^rt refusing to rehear the decree. decree in accordance with which the 

.*'* Hoyt V.Smith, 28 Conn. 471, after report was made, the chancellor will 

: ^ ca.se had been heard by a commit- direct the report to stand over, and 

^c ^od the facts had been reported to the order that portion of the former decree 

^^V^^rior Court, that court allowed containing the erroneous instructtona 

J ^ plaintiff to amend his bill by the to be reheard. Lang v. Brown, 3i 

y^^«*t.ion of additional averments. Ala. 179. 

f*^^ defendant thereupon claimed a Peerte Conflrming Conuniationer'i Xe- 

^^^ther hearing upon all the facta port in Adminiftration Suit. ^ After a 

J5^^y set up by the amendments, but report made by a commissioner in 

tn(^ Superior Court granted a rehearing chancery, in a suit for the settlement 

^^ly with regard to material facts not of an administration account, has been 

already (ound by the committee. On confirmed without objection, the decree 

^W^al it was held that the whole mat- confirming said account cannot be re- 

^T rested in the discretion of the Supe- heard on the petition of a person who 

tior Court, and that the exercise of this was a party to the suit at the time 

7 Volume XVIII. 



Bakeariagi in Equity. REHEARING. QnmiuU. 

Srrort of Law and FMt — Thus, error of law apparent on the face 

of the decree is a strong reason in favor of granting the applica- 
tion,* but petitions based on error of fact alone are not generally 
favored.* 

Immnterial Error. — In either case the error must be clearly appar- 
ent, and in a matter material to the decision of the case;' and 
when it is clear that the mistake, if there be any, is immaterial, 
and that a rehearing of the case could not alter the original 
decision, it will be refused.* 

when it was entered, in the absence of be had in a suit remanded from the 
proof showing that some item in the Supreme Court to the Court of Chan- 
account was erroneously allowed, or of eery, said: ** The * proper grounds ' 
any newly discovered facts. And this have already been somewhat indicated, 
is especially true where the petition for They should be limited to substantial 
a rehearing is not presented until after errors apparent or manifest from the 
the lapse of a considerable time from papers and pleadings, errors plainly 
the entry of the decree complained of. resulting from inadvertence, or over- 
Radford v. Fowlkes, 85 Va. §20. sight of an uncontroverted or settled 

1. Re Lindsay, 27 Pittsb. Leg. J. N. fact, errors or mistakes such as it is 

S. 435; Hunt V, Smith, 3 Rich. Eq. (S. evident the Supreme Court would cor- 

Car.) 465. rect upon suggestion before the cause 

Bcitort Kay Be Had to Any Part of the was remanded. In a cause remanded 
Beoord for the purpose of making such this remedy is in no sense applicable 
error manifest. Hunt v. Smith, 3 for the purpose of review. Every con- 
Rich. Eq. (S. Car.) 465. sideration demands that a decision of 

8. Sehearing for Error of Faet. — In the Supreme Court should be final, and 

South Carolina a rehearing cannot be especially that it should not be changed 

had on the ground that the court erred by a single judge as chancellor. But 

in deciding an issue of fact. Hunt z^. error,' inadvertence, mistakes happen- 

Smith. 3 Rich. Eq. (S. Car.) 465. ing in the manner above indicated. 

And in Delaware it has been held is not ' decision.' Beyond the above 

that where the chancellor errs in bis limitation we think a chancellor has 

decree in a matter of fact, the decree no right to rehear a cause remanded, 

is final and cannot be reviewed; but if Within that limitation he may in his 

he errs in his conscience upon a matter discretion grant a rehearing.'* 

of fact proved before him, there may In theCireuit Court of the United States 

be a review of this matter. Fennimore a rehearing on the original evidence 

V. Rahow, I Del. Ch. 88. will not be granted unless some plain. 

In New Jersey a rehearing will be obvious, and palpable error, omission, 

granted for error either of law or of or mistake in something material to the 

fact; but not where the introduction of decree is brought to the attention of the 

new evidence is necessary in order to court, having previously escaped its 

show the mistake. Brumagim v, attention. Jenkins v, Eldredge, 3 

Chew, 19 N. J. Eq. 337. Story (U. S.) 299. 

In Tennessee a rehearing may be had 4. A Xotion for a Behearing Made for 

where the court errs in its conclusion Delay (hily will be refused. Land v, 

drawn from the facts. Robertson v, Wickham, i Paige (N. Y.) 256. 

Maclin, 4 Hay w. (Tenn.) 53. JCatter Hot Affecting the Decree. — In 

8. Andrews z\ Crenshaw, 4 Heisk. New Jersey Zinc Co. v. New Jersey 
(Tenn.) 151. Franklinite Co., 14 N. J. Eq. 308, a re- 
Error in Conclusion — Donbtfal EtI- hearing was denied, since it appeared 
denee. — A lehearing will not be granted that if all the allegations of the petition 
for a supposed error in a conclusion were admitted, the adverse parly would 
drawn from doubtful evidence. John- still be entitled to the same relief which 
son V. Lewis, I Rich. L. (S. Car.) 390; was granted by the original decree. 
Ex p, Dunovant, 16 S. Car. 299. and because the matter suggested as 

Bole Stated. — In Canerdy v. Baker, constituting error was a matter of in- 

55 Vt. 578, the court, stating the difference, a decision of which could 

grounds on which a rehearing might not affect the issue in the case. 

8 Volume XVIII. 



BefaMiingt in Equity. kEHEARlN^G. Orounds. 

b. Material Facts Overlooked. — That the court has over- 
looked material facts in arriving at its decision is a good reason 
for a rehearing.* 

Fointi Argued bat Hot Kotioed in Opinion. — Although certain points 
presented by the argument are not noticed in the opinion, it does 
not follow that they escaped the attention of the court,* and 
where all the points presented have in reality been duly consid- 
ered and passed upon by the court a rehearing will be denied.* 

r. Newly Discovered Evidence. — In some jurisdictions a 
rehearing may be had where new evidence, which might prob- 
ably change the decision, has been discovered since the hearing.'* 
The allowance of applications on this ground, however, is not in 
accordance with strict chancery practice, since a rehearing, prop- 
erly speaking, is simply a new hearing upon the original record,* 

If a Beeroe Bendored in a Foreolotnre ertng such testimony, where it has in 
Sdtli Invalid a rehearing is unneces- fact been fully considered by the court 
sary« since such a decree cannot preju- before the decree was rendered. Hun- 
dice the right of the petitioner; if, on ter v. Marlboro, 2 Woodb. & M. (U. S.) 
the other hand, the decree is valid, a 168. 

rehearing will not be granted where 4. Detroit Sav. Bank v. Truesdail, 

theooly result would be the rendering 38 Mich. 430; Dennett v. Dennett, 44 

of a second decree for substantially the N. H. 531; Carr z/. Green, Rich. Eq. 

same amount. Hurlburd v. Freelove, Cas. (S. Car.) 405; Tomlinson v. Tom- 

3 Wis. 537. linson, 11 Rich. Eq. (S. Car.) 52; Hunt 

1. Hill V, Southern R. Co., (Tenn. v. Smith, 3 Rich. Eq. (S. Car.) 465; 

Ch. 1S97) 42 S. W. Rep. 888; Jenkins Whitman v, Brotherton, 2 Tenn. Ch. 

V. Eldredge, 3 Story (U. S.) 299. 396; Scales v. Nichols, 2 Yerg. (Tenn.) 

Bat in order that an application 140; Mays v. \\rherry, 3 Tenn. Ch. 219; 

based on this ground may be success- Radford t/. Fowl kes, 85 Va. 820; Hunter 

ful, it must be shown that the fact in v, Marlboro, 2 Woodb. & M. (U. S.) 168. 

question was raised by the pleadings For the corresponding rule on appli- 

aad was brought to the attention of the cation for a new trial, see article Ne^ 

court on the hearing. Buffalow v. Trial, vol. 14, p. 790 et seq, 

Buffalow, 2 Ired. Eq. (N. Car.) 113. As to the Form of Application proper 

8. Bentley r. Phelps, 3 Woodb. & M. to be employed when the rehearing is 

(U. S.) 403. sought on the ground of newly discov- 

8. Fennimore v, Rahow, i Del. Ch. ered evidence, see infra^ I. 6. How Ap- 

88; Boucher v, Boucher, 3 Mac Arthur plication Is Made, 

(D. C.) 453; Martindale v, Waas, 11 Evidonoe to Impeach Former Testimony. 

Fed. Rep. 551; Tufts v. Tufts, 3 — A rehearing should be granted to the 

Woodb. & M. (U. S.) 426. defendant in a suit where it appears 

Question Baieed by Croee-bill. — When that on the original hearing the com- 

a certain question has been raised and plainant himself gave the only testi- 

controverted in the original bill, and mony which was offered in his behalf, 

has been duly passed upon and adjudi- . and where the petition for a rehearing 

cated by the decree rendered, a rehear- alleges newly discovered evidence 

ing will not be allowed on the ground tending to prove that the complainant 

that a cross-bill and answer raising the has made statements contradicting his 

same question have been filed since the previous testimony in a material point, 

hearing upon the original cause. Bar- Sheldon v. Hawes, 15 Mich. 519. 

Iter V. Belknap, 39 Vt. 168. A Xaater's Seport upon a Beference 

Wwpjirehenaion of Teetimony by Court, may be modified on rehearing at any 

*-AUhough testimony which is offered time prior to its final settlement, upon 

w» the hearing for the purpose of the discovery of new proof after the 

WiabUshing certain points is applied original hearing. Pattison v. Hull, 9 

hy the court to an entirely diflferent Cow. (N. Y.) 747. 

point in the case, a rehearing will not 6. Fennimore v. Rahow, i Del. Ch. 

^granted for the purpose of reconsid- 88; Read v, Patterson, 44 N. J. Eq. 211. 

9 Volume XVIII. 



BehMurings in Equity. REHEARING. SMUidi. 

and for this reason the power to grant a rehearing (or newly dis- 
covered evidence should be exercised with great caution.^ 

Evidence Xerely Cnmolatiye — Laehee of Petitioner. — Where the evidence 
IS merely cumulative, or is offered simply for the purpose of con- 
tradicting or discrediting a witness of the adverse party,* or where 
the petitioner was aware of its existence before the hearing and 
failed through laches to obtain it, the application must be refused.* 

1. Kelley r. McKinney, 5 Lea(Tenn.) by his answer to the original bill- 

164; Allis V. Stowell, 85 Fed. Rep. 481. Daniel v. Mitchell, i Stoiy fU. S.) 198. 

Parties ought not, as a general rule, Evidence Hot Admietiblo on Original 

to be allowed to go into further proofs. Hearing. — A rehearing will be refused 

but should be confined to the testimony where the newly discovered evidence 

used, or which might have been used, concerns a parol agreement, and is 

on the hearing, unless, as in a bill of offered for the purpose of varying a 

review, new evidence is disclosed written contract, since such evidence 

which could not possibly have been would not have been admissible on the 

used before. Rehearings on the original hearing. Dale v. Smith, x 

ground of newly discovered evidence Del. Ch. 11. 

must be confined within rigid limits, Oral Evidence. — In South Carolina it 

and carefully guarded, not merely be- has been held that a r<^hearing will not 

cause they tend to protract litigation be granted in any case on the ground 

unnecessarily, but because they also of newly discovered oral evidence, 

open the door to fraud and perjury. Hlnson v. Pickett, 2 Hill Eq. (S. Car.) 

The evidence offered ought to be ma- 351. 

terial if not controlling. A rehearing Facte Tolly Examined. — A rehearing 

will not be granted to take a party's will not be granted for the considera- 

own deposition where no excuse is tion of new evidence in regard to facts 

offered for his failure to testify on the which were at issue and were fully 

hearing. Kelley e/. McKinney, 5 Lea examined on the original hearing. 

(Tenn.) 164. Fennimore v, Rahow, i Del. Ch. 88. 

Confessions by Advene Party •abeeqnent 8. Hall v. Fullerton. 69 111. 448; De- 
to Decree. — When rehearings are asked troit Sav. Bank v, Truesdail, 38 Mich, 
for on the ground of newly discovered 430; Dennett v. Dennett. 44 N. H. 531; 
evidence they are mainly governed by McDowell v. Perrine, 36 N. J. Eq. 632; 
the same considerations as apply to Dunham 1/. Winans, 2 Paige (N. Y.) 
cases where leave is asked after publi- 24; Reeves v. Keystone Bridge Co., 11 
cation of testimony, and before the Phila. (Pa.) 498, 33 Leg. Int. (Pa.) 149; 
hearing, to file a supplemental bill in Akers v. Akers, 83 Va. 633; Powell v, 
order to bring such new evidence be- Batson, 4 W. Va. 610; Baker v. Whit- 
fore the court, or where, after a decree, ing, I Story (U. S.) 218; Rogers v. 
leave is asked on like ground to file a Marshall, 13 Fed. Rep. 59; Pittsburgh 
bill of review or bill in the nature of a Reduction Co. v. Cowles Electric 
bill of review. It is doubtful whether Smelting, etc., Co., 64 Fed. Rep. 125; 
in any case the court will grant a re- Bentley v. Phelps, 3 Woodb. & M. (U. 
hearing on the ground of confessions S.) 403. See also article New Trial, 
made by the adverse party since the vol. 14, p. 811 et seq. 
decree was rendered. If this can be Thus where the testimony of a wit- 
done under any circumstances it can be ness for the complainant is rejected at 
only where the confessions are of the the hearing, on the ground of interest, 
most full and direct character, and are a rehearing will not be granted to en- 
proved by disinterested testimony, and able the complainant to release the in- 
are not susceptible of different inter- terest of the witness and to re-examine 
pretations. A rehearing will not be him, the only object being to contradict 
granted on this ground where the ap- witnesses for the adverse party. Dun- 
plication is supported only by the affl* ham v. Winans, 2 Paige (N. Y.) 24. 
davit of a single witness as regards 3. Robinson v. Sampson^ 26 Me. ii; 
the alleged confession, and where this Detroit Sav. Bank v. Truesdail, 38 
affidavit is distinctly contradicted by Mich. 430; Dennett v. Dennett, 44 N. 
affidavits of the adverse party and also H. 531; Cummings v, Parker, 63 N. H, 

10 Volume XVIIL 



Mearings in Equity. REHEARING. 0roiuidf. 

d. Matters Not in Issue on Hearing. — As a general rule 
a rehearing will not be granted for the consideration of matters 
which were not put in issue by the pleadings and which did not 
make a part of the case as it stood on the original hearing.* 

e. Mistakes and Omissions in Presenting Case on Hear- 

ING — (l) In General. — FaUure to Presont the Ca»6 PuUy, or to give 
sufficient attention to the argument or presentation of evidence 

^98; Baker v. Whiting, i Story (U. S.) lishing such facts by competent te»ti- 
2x8; Colgate v. Western Union Tel. mony. Detroit Sav. Bank v. Trues- 
Co., 19 Fed. Rep. 828; Norton v. dail, 38 Mich. 430. 
Walsh, 49 Fed. Rep. 769; Bentley v, 1, Kevinyon v. Stables, 4 Russ. 210; 
Phelps, 3 Woodb. & M. (U. S.) 403. Home v. Barton, 8 Dc G. M. & G. 587. 
In Owens v. Love, 9 Fla. 334, the But see Hoagland v. Titus, 16 N. J. 
court said: '* In the first place, the £q. 44, where the chancellor, of his 
new matter must be relevant and ma- own motion, directed a reargument of 
terial, and such as might probably the case where the evidence, although 
have produced a different determina- it failed to support the allegations of 
tioQ. In other words, it must gener- the bill, gave rise to considerations of 
allv be new matter to prove what was a character different from those pre- 
before in issue, and not to prove a title sented on the hearing, 
not before in issue; not to make a new Xattars Hot in Issue on the Hearing. -<- 
case, but to establish the old one. In A rehearing will be refused where the 
the next place, the new matter mus' grounds on which it is asked do not 
have first come to the knowledge of affect the merits of the controversy, 
the party after publication has passed, and consist of matters which were not 
And in the next place, the matter put in issue by the pleadings, and 
mast not only be new, but it must be where the only effect of the rehearing, 
such as the party, by the use of reason- if granted, would be to turn the corn- 
able diligence, could not have known, plainants out of court as improper par- 
for if there be any laches or negligence ties, leaving the controversy undecided. 
in this respect that destroys the title New Jersey Zinc Co. v. New Jersey 
1 the relief. 2 Smith's Cb. P., page Franklinile Co., 14 N. J. Eq. 308. 
58 (marginal page). The party must Where the Question of Costs Is Hot 0ng- 
show that the new matter is relevant gested while the case is before (he 
or that there is probable cause that it court on the hearing, the court will not 
may be relevant to the matters in entertain a motion, made at a subse- 
questio'n. On this application for leave quent term, for a rehearing upon the 
to tile supplemental bill, and for a re- question of costs. Bradlee v, Apple- 
bearing, this court can only consider ton, 2 Allen (Mass.) 93. 
the prior interlocutory decree, so far as Grievance Consequent npoa Decree. -*• A 
to ascertain and inquire whether the rehearing will not be granted for the 
new matter sought to be introduced is purpose of remedying a grievance 
relevant and material, and such as, consequent upon the decree, resulting 
had the same then been before the from circumstances occurring after the 
chancellor, might properly have pro- decree was rendered, and not making 
duced a different determination." part of the case as it originally stood. 
Ability of Petitioner to Obtain Evidence* where no error in the decree itself is al- 
— On a petition for a rehearing for leged. Bowyer «/. Bright. 13 Price 316. 
newly discovered evidence, in order to Behearing to Exclude Evidence Filed 
determine whether reasonable and or- on Hearing. — A rehearing can, as a 
dinary care, attention, and diligence general rule, be had only for altering 
have been exercised in obtaining such a decree upon grounds which existed 
evidence, the physical and pecuniary at the time when the decree was pro- 
condition of the petitioner must be nounced. Whether an application 
considered, and also the information or which seeks to change the status of the 
knowledge which he then had of the case at that date by excluding some of 
important facts of the case, and in the the evidence then filed would fall 
light thereof the difficulties likely to be within this rule is doubtful. Whitman 
encountered in tracing up and estab- v, Brotherton, 2 Tenn. Ch. 396. 

11 . Volume XVIII. 



ttehMrings in Equity. REHEARING. dronn^. 

on the original hearing, cannot be urged as a ground for granting 
a rehearing ; * and this is true even where such failure arises from 
surprise occasioned by the unexpected conduct of the opposing 
counsel,* except, perhaps, in a case where such conduct amounts 
to a violation of some stipulation or agreement between the par- 
ties as to the conduct of the cause, and where the decree rendered 
is interlocutory in its nature.* 

(2) Improper Exclusion of Evidence, — The improper exclusion 
by the court of material evidence, whereby the petitioner has been 

1. Railway Register Mfg. Co. r. it appeared that the decree was based 

North Hudson County R. Co., 26 Fed. on an imperfect presentation of the 

Rep. 411; Hunter zr. Marlboro, 2 facts, that the application for a rehear- 

Woodb. & M. (U. S.) 168. ing was promptly made, and that the 

Omiuion of Evidence from ICaster's fia- rights of third persons had not inter- 
port. — Where a petition for a rehear- vened. Parker's Estate, 6 Pa. Dist. 
ing alleged that on a reference to the 519. 

master, preliminary to the decree, ma- 8. Everest v, Buffalo Lubricating Oil 

terial evidence had been given for the Co., 22 Fed. Rep. 252, 

petitioner, but that said evidence was 8. In Spilman v. Gilpin, 93 Va. 698, 

accidentally omitted by the master " the defendants moved the court for a 

from his report, and that the petitioner continuance, upon the ground of the 

was ignorant of this omission when the existence of a convention between their 

decree was entered, a rehearing was counsel and opposing counsel that dep. 

refused. Buffalow v. Buffalow, 2 Ired. ositions taken in a similar case migrht 

Eq. (N. Car.) 113. be read in this, which, if read, would 

Failure to Present Evidenee. — Failure have established a complete defense 

to present on the original hearing cer^ to the action; that, relying upon this 

tain testimony which the party then convention, made in the interest of 

had in his possession is no ground for economy, and for the promotion of 

a rehearing where it appears that the speedy justice, they had failed to pre- 

testimony, if given, would not have pare their case; that a decree upon the 

affected the result. Hand v. Rogers, bill taken for confessed had gone 

(Supm. Ct. App. T.) 16 Misc. (N. Y.)364. against them, interlocutory in its char- 

Failnre to Make Defense. — After an acter; and that at a subsequent term 
interlocutory decree has been rendered, these facts were all called to the atten- 
a rehearing will not be granted on a tion of the court, and none of them de- 
petition which alleges that the party nied." It was held that a rehearing 
had a defense which might have been ought to be granted, and the court 
made before, bat which was not pre- said* " It is difficult to define the pre- 
sented because he had supposed that it cise limits of the duty of courts upon 
could not be maintained. Cock z/. petitions to rehear. It may be safely 
Evans, 9 Yerg. (Tenn.) 287. stated, however, as being established 

Immaterial Defects Waived on Hearing, by the authorities, that where a case 

— Where, on the hearing, a party has has not been heard upon the merits, 

waived an objection as to parties, or as but an interlocutory decree has been 

to proof of a document, the same ob- rendered upon the bill taken for con- 

jection cannot be urged as ground for fessed, and other circumstances tend- 

a rehearing. Malone v. Geraghty, 2 ing to excuse the defendant's default 

Con. & Law 235. in making his defense at the proper 

And where technical and unimport- time appear, the rehearing of the de- 
ant defects exist in the steps prelimi- cree upon a petition filed for that pur- 
nary to the hearing, but the parties pose, showing that the defendant had 
are not prejudiced thereby, and no ob- a meritorious defense, may, in the dis- 
jection is made at the time, they will cretion of the court, be entertained, 
be considered waived, and after decree The discretion thus exercised is, of 
rendered a rehearing will not be course, a judicial discretion, and on<- 
granted on their account. Allen v, not to be exercised arbitrarily either in 
New York, 7 Fed. Rep. 483. granting or withholding the reliel 

But a Sehearing Was Granted, where sought." 

. 12 Volume XVIII. 



leteringt in Equity. REHEARING. Groundi. 

prejudiced and the adverse party has obtained an inequitable 
decree, is generally considered good ground for granting a petition 
for a rehearing.* 

(3) Negligence^ Mistake, or Misconduct of Counsel. — A rehear- 
mg in equity cannot be had on account of the negligence * or bad 
advice of counsel,' or his mistake as to the pertinency, force, or 

1. In Hodges v. McDaff, 76 Mich, amoanted to bad faith on his part, this 

303t a rehearing of a supplemental de- will be an additional reason in favor of 

cree for compensation was allowed the application. Day v. Allaire, 31 N. 

where it appeared that the trustee J. Eq. 303. 

against whom it was rendered had 8. Warner v, Warner, 31 N. J. Eq. 

properly managed the trust estate, and 549. 

ihai the decree had been entered with- In Smith v. Patton, 12 W. Va. 541, 
oai permitting him to prove the value a bill was filed to enforce payment of 
of his services. the balance due on a final settlement in 
In NicoU V, Huntington, i Johns, full of all accounts between the plain- 
Ch. (N. Y.) 166, a rehearing was tiff and the defendant. The answer 
gramed on a petition which alleged admitted the settlement, but alleged 
that the chancellor had improperly ex- that it was made by the defendant in 
eluded certain affidavits offered by the ignorance of the existence of certain 
plaintiff, and that a feigned issue, accounts against the plaintiff, which 
awarded by the court, to try title to accounts were not included in the set- 
real estate, was improper, since it tlement. This was denied by the 
broaght in question only the plaintiff's replication, but no proof was taken in 
title without presenting that of the de- the case. The court did not refer the 
fendaot. cause prior to the date of the settle- 
Itoheftring Granted on Tenus. — Where ment, but rendered a decree for the 
a party has obtained an inequitable amount due by such settlement with- 
decree in his favor through the exclu- out making any order of reference, 
sion of evidence offered by the adverse The defendant thereupon filed a peti- 
party, the latter may have a rehearing, tion for a rehearing of the cause on the 
although in strictness no rule of law ground that he had been advised by 
has been violated; but a rehearing his counsel that the court would make 
granted on this ground is not allowed an orderof reference without any proof 
as a matter of right, and in granting being taken of the allegations in his 
the application the court may impose answer, and that the petitioner, under 
terms upon the petitioner. Simms v. such advice, failed to take such proof, 
Smith, II Ga. 195. though he could, if opportunity v;as 
2. Birmingham, etc.. Land Co. v, offered, prove the truth of such allega- 
London, etc., R. Co., 34 Ch. ^D. 261; tions. It was held that the action of 
Hood V. Pimm. 4 Sim. loi. the court in rendering a decree without 
Negligence of counsel is not ordi- ordering a reference of the cause prior 
narily considered good ground for a re- to the date of the settlement was proper, 
hearing in Fifr^/ma. If a review of the and that the petition for a rehearing 
decree can be had in any case on this must be refused. 

ground, the application must be by bill Where a decree has been rendered 

of injunction, and not by motion, against a defendant, chiefly because 

Scott V. Hore. i Hughes (U. S.> 163. the evidence offered in his behalf was 

Sioeption in Favor of Married Women, insufficient to establish his defense, he 

— In a case where there is a meritori- cannot have a rehearing on a petition 

OQs defense, and where the defendant, which alleges that at the time of the 

a married woman, has been deprived hearing he intended to procure the evi- 

thereof by the negligence of her coun- dence of another witness who was 

sel in obtaining proofs and presenting without the state, but that his counsel 

them to the court, it is discretionary told him it would be of no use to do so, 

^ith the court to grant a rehearing and that, relying on this advice, he 

){ the application therefor is made neglected to procure the evidence in 

promptly. And if it can be shown question. Perrine v. White, 36 N. J. 

Ihat the negligence of the attorney Eq. i. 

13 Volume XVIII. 



Sdiwurlngg in Equity. REHEARING. ermute 

admissibility of certain evidence,* or his abandonment of the 
defense after hearing the evidence of the adverse party.* 

(4) Absence of Party from Hearing. — A party who has failed 
to attend the hearing of a cause cannot have a rehearing if his 
absence was voluntary ; and even though his failure to attend 
was involuntary or accidental, his petition will be refused unless 
a sufficient excuse for the default is given.' 

/. Decree Rendered by Divided Court. — Where the 

members of the court rendering the decree were equally divided 
in opinion a rehearing will sometimes be ordered.* 

g. Decree Obtained by Fraud. — Fraudulent representa- 
tions by the adverse party, resulting in an erroneous decree, are 
not sufficient to authorize a rehearing. In such a case the proper 
remedy is by independent bill setting up the fraud.* 

h. Reversal of J udgment on Which Decree Is Founded. 

— Where a judgment under which a judicial sale has been made 
is reversed, after submission, but before decision of the cause, on 
a bill to confirm the title of the purchaser, a rehearing may be 
granted on the application of a defendant in the judgment.* 

1. Lyon z/. Boiling, 14 Ala. 754; Rob- 8. Where the absence was purely 
inson v. Sampson, 26 Me. 11 ; Mc* accidental, and a sufficient excuse is 
Do well V. Perrine, 36 N. J. £q. 632; offered, a rehearing may be had. 
Baker «/. Whiiing, i Story (U. S.) 218; Townsend v. Smith, 12 N. J. Eq. 350. 
Lock wood V. Cleveland, 20 Fed. Rep. But not where the failure to attend 
164; Cutten V. Sanger, 3 Y. & J. 374. arose from a mistake as to the time 

OouiiMl Misled as to Real Iftue. — The when the cause would be heard. Read 

fact that on the hearing of a cause a v. Walker, 18 Ala. 323. Nor where the 

party and his counsel were misled as party, who was his own solicitor, was 

to the real issue involved, by the argu- obliged to go to another court, and was 

ment of counsel for the adverse party, absent .from the hearing. Whitman v. 

and for that reason failed to piesent Brotherton, 2 Tenn. Ch. 393. 
certain important evidence, is no In Foy v. Foy, 25 Miss. 207, a peti- 

ground for a rehearing. Pittsburgh tion for a rehearing was refused 

Reduction Co. v. Cowles Electric although it alleged that the testimony 

Smelting, etc., Co., 64 Fed. Rep. 125. on which the original decree was ren- 

Ezoeption to the Role. — In Hulsizer dered was false; that the petitioner 
V. Opdyke, (N. J. 1888) 14 Atl. Rep. had no personal notice of the time and 
644, a rehearing was granted where it place of taking the testimony; that his 
appeared that certain evidence had solicitor upon whom notice was served 
been omitted at the hearing on account was ignorant of his post-office address, 
of a misapprehension by the complain- and could not find it out in time to give 
ant'scounselof a ruling of the court ex- him the information; and that the corn- 
el uding other evidence of a somewhat plainant was confined to his house by 
similar character. illness, and was prevented from notify- 

2. Ahandonment of Oaee byConniel. — ing his counsel to put the cause on 
A rehearing will not be granted on the trial, and from giving him facts show- 
ground that counsel for the defendant ing the falsity of the testimony in 
abandoned the case after hearing the question. 

opening argument for the adverse 4. Voorhees ». Thorne, 2t N. J. L. 

party, unless it can be shown that such 77. And see in general article Division 

abandonment amounted to a violation of Opinion, vol. 7, p. 44. 

of duty on the part of the counsel, or 5. Hurlburd ». Freelove, 3 Wis. 537. 

that he clearly mistook either the law See article Bills to Impeach Decrees 

or the facts of the case. Decarters v. and Judgments, vol. 3, p. 607. 

La Farge, i Paige (N. Y.) 574. 6, Gould v. Sternberg, 128 111. 510. 

14 Volume XVIII. 



IdMariAgt In B^nl^. REHEARING. To whom AppUcation Hado. 

8. By Whom B^hearing May Be Had — Penon Hot a Party. — 
A rehearing may sometimes be had by a person who is not a party 
to the original suit, but whose interests are affected thereby.* In 
such cases, however, the petition cannot be filed as of course.* 

Where 8ouo of the Partiee Preeenting a Petition Are Hot Entitled to a Behear- 
iag, the petition may be amended by striking out their names, and 
the application will then be granted or refused in accordance with 
the merits of the case.* 

AMignee. — It has been held that assignees cannot petition for a 
rehearing.* 

1 To Whom Application Should Be Kade. — A petition for a 
rehearing should be addressed to the judge who originally heard 
the case.* 

After Game Has Been Bemoved or Appealed. — As a general rule, the 
court in which the hearing was had cannot grant a rehearing after 
the cause has been removed to a higher court by appeal,* nor 

1 Morris v. Landon, 2 L. J. Ch. 140; S. Aooording to the Englieh Praotioe a 

Hughes V. Turner, 4 L. J. Ch. 141; person who is not a party must first 

jopp V. Wood, 33. Beav. 373; Leete v, apply for leave to file his petition for 

ienkins, 14 W. R. 489; Hamilton v, a rehearing, and cannot file it as of 

lanby, 6 Bro. P. C. (Toml. ed.) 347. course without leave granted. Berry 

Ani^^ior of 01a|p. — In Daily z/. War- v. Atty.-Gen., 2 Macn. & G. 16; 

ren, 80 Va. 512, a party filed a petition Gwynne v. Edwards, qBeav. 22. 

io a pending cause to assert his claim In Yirglnia the person desiring a re- 

as assignee of a certain debt reported hearing must intervene by petition to 

therein. The assignor of the debt was be made a party to the suit, after which 

not made a party to the petition, nor a petition to rehear may be filed, 

sommoned to answer, but a decree was Armstead v. Bailey, 83 Va. 242; Heer- 

rendered directing payment of the debt mans v, Montague. (Va. X890) 20 S. £. 

to the petitioning assignee. Thereafter Rep. 899. 

a rehearing was granted upon applica- 8. Atty.-Gen. v. Stamford, 6 Jur. 117. 

tion by the assignor. 4. Armstead v. Bailey, 83 Va. 242. 

A Hew Plaintiif Who Has Filed a Snp- 6. " Where cases have been heard by 
jUmental Bill may impeach a decree the circuit judge sitting alone I do not 
npon a rehearing which has been myself hear applications in them for a 
granted on the petition of other per- rehearing, * *  except by his re- 
sons who were parties to the suit. Hill quest." Per Field, C. J., in Giant 
V. Chapman, i Ves. Jr. 405. Powder Co. v, California Vigorit 

A Party Made a Defendant by Snpple- Powder Co., 5 Fed. Rep. 197. 

nental Bill after decree, and who has In Simpson v. Downs, 5 Rich. Eq. (S. 

appeared to the bill, may present a Car.) 421, it was held that since the 

petition for a rehearing if he has filed Court of Appeals had only appellate 

an answer, but not otherwise. Atty.- jurisdiction, an application could not 

Gen. V. Stamford, 6 Jur. 117. be entertained in that court to rehear a 

Party Raving No Interest in Beeree. — circuit decree which was not appealable. 
Where, in accordance with the prayer The Chaneellor Will Hot, in Ordinary 
of a bill in chancery, a decree is made Gases, rehear a decree advised or made 
ordering the sale of certain lands be- by a vice-chancellor. The application 
longing to infants, and the decree for a rehearing should be made to the 
further orders the sale of other lands same vice-chancellor who rendered the 
not mentioned in the bill, the complain- decree, and if the petition is granted 
ant cannot have a rehearing of the lat* the reargument should also be had 
ter part of the decree, where he is in before him, and not before the chancel- 
no way interested in the proceeds of lor. Pullen v. PuUen, 41 N. ). Eq. 
the lands last mentioned, and did not 417; Rusling v. Bray, 38 N. J. Eq. 398. 
uk for their sale in his original bill. 6. Tant v. Guess, 37 S. Car. 489; 
Hinton v, Hinton, 70 N. Car. 730. Elgin Lumber Co. v. Langman, 23 111. 

15 Volume XVIIL 



BeliMurings in Equity. REHEA RING. Timt of Kaking AFplioatlom. 

after the appeal has been decided and the case remanded,* but 
rehearings have sometimes been allowed- under these circum- 
stances, in exceptional cases.* 

6. Time of Making Applioation — a. Before Enrolment or 
Entry of Record. — As previously stated a petition for a 
rehearing does not lie after enrolment of the decree,* or after 

App. 250. And see infra^ I. 5. Time not final. Potts r. Creager, 71 Fed# 

of Making Application, Rep. 574. 

When a case comes up for review Yemumt. — In Canerdy v. Baker, 55 
and a point is made which was over- Vt. 578, the court said: " Probably the 
looked in the lower court, and which Supreme Court would hear a motion to 
could not be obviated in that court by correct apparent error if made at the 
proof or amendment, the appellate term and before the cause was re- 
court will take cognizance of the point manded, but this ordinarily would not 
and decide it, and will not send the be a very practicable remedy, because 
case back to the lower court for a re- decisions are not rendered until the end 
hearing. Woodward v. Bullock, 27 N. of the term, or in vacation as of the 
J. Eq. 507. term. In view of this, and of the fact 

1. Ex p. Knox, 17 S. Car. 207. that a bill of review is not generally 
An Interloontory Decree Which Hm available, under the restrictions of our 

Been Affirmed by the Court of Appeals statute, to correct errors appropriate 

cannot be reheard in the lower court, for correction upon rehearing, we think 

And this rule applies where an appeal it would be more consonant to the lib- 

from the decree has been dismissed for eral spirit pervading the practice in the 

failure to have the record printed, as English chancery to guard against ap- 

such dismissal is, in effect, an affirm* parent error, to hold that a chancellor 

ance of the decree appealed from, might rehear a cause remanded from 

Woodson V. Leyburn, 83 Va. 843. the appellate court, when based upon 

Application for Leave to Apply to Lower proper grounds and seasonably filed 

Court. — After the Supreme Court has and certified as our rules require." 

affirmed an order on appeal, it will not In the Federal Courts an application 

grant a petition for leave to apply to to rehear a decree should be made to 

the lower court for a rehearing, the court by which the decree was ren- 

especially where the application is dered, and not to the appellate court, 

made on the ground of newly discov- If the application is properly made to 

ered evidence, and it appears that the the court below during the term, such 

party's failuie to procure the evidence court may request the Supreme Court 

sooner was due to laches. Sherwood to return the record filed above, and 

c/. Central Michigan Sav. Bank, 104 such a request may be granted in 

Mich. 65. proper cases and under proper restric- 

2. Affirmance Without Prejudice to tions. Roemer v. Simon, 91 U. S. 149. 
Sehearing Below. — Where an order or 3. Chetwynd z/. Fleetwood, i Bro. P. 
decree which does not reserve the right C. (Toml. ed.) 306; Ollerenshaw v, 
to apply for a modification thereof upon Harrop, L. R. 9 Ch. 480; Groom v. 
a new state of facts is made by the Stinton, 11 Jur. 895; Gore v. Purdon, i 
chancellor, and is affirmed on appeal, Sch. & Lef. 234; Atty.-Gen. v. Stam- 
the appellant, if he desires a rehearing ford, 6 Jur. 117. And see supra^ I. i. 
in the lower court, must ask the appel- In General, 

late couit to make the affirmance with- " The well-settled rule of chancery 

out prejudice to an application for a practice is that after a decree has been 

rehearing below. Lyon v, Merritt, 6 enrolled, that is, after it has become 

Paige (N. Y.) 473. matter of record, there can be no re- 

Interlocntory Decree Entered in Accord- hearing, either on motion or petition, 

ance with Xandate. — Where a decree * * * There are, however, excep- 

has been reversed in the appellate tions to this rule. Cases do not come 

court, and the case remanded with di- within it where some clerical errors, 

rections for further proceedings, the de- mistakes in computation, or irregular- 

cree entered in accordance with the ities in making up the record have oc- 

mandate may be reheard in the court curred, or where a final decree has 

below, provided it is interlocutory and been made on default of a party 

16 Volume XVIII. 



BflhMriagt in Sqvitj. RE HE A RING. Time of lUUiig AppUoation. 

entiy of record by any process corresponding to enrolment.* 

b. Before End of Term. — Since, in the United States, 
decrees and orders are considered to be enrolled as of the term at 
which the final decree was rendered, a petition for a rehearing 
cannot be filed after the end of the term,* except in cases pro- 
vided for by statute or by rule of the court.* 

through the negligence or mistake of a reargument was permitted after the 
his solicitor, or by reason of want of opinion of the court had been read, 
notice to him of the pendency of the but before decree had been entered, 
suit." Per Bigelow. C. J., in Thomp- In Massaohnietti, where a cause in 
son V. Goulding, 5 Allen (Mass.) 81, equity has been continued nisi from a 
rt'A'if^ Clapp V. Thaxter, 7 Gray (Mass.) law term for advisement, and a judg- 
384: Kemp 5. Squire, i Ves. 205; Reek- ment dismissing the bill has been en- 
man V, Peck, 3 Johns. Ch. (N. Y.) 415; tered, by order of the court, as of the 
Clark V. Hall, 7 Paif;e (N. Y.) 382; last term in the county where the suit 
Millspaugh v. McBride, 7 Paige (N. Y.) was pending, this is equivalent to an 
509; and 2 Dan. Ch. Pr. 1230, 1235. enrolment of the decree, and prevents 

Earohnent of Order SalMeqnent to De- a subsequent rehearing. Clapp v. 
croa. — It seems that the enrolment of Thaxter, 7 Gray (Mass.) 384. 
an order subsequent to a decree is not In Vorth Carolina a petition for a re- 
per se an enrolment of the decree, but hearing was refused where the decree 
it has been held that it equally pre- had been signed and passed. Robin- 
vents a rehearing of the decree, at least son v, Lewis, 2 Jones Eq. (N. Car.) 25. 
in a case where the latter cannot be 2. Gardner v Dwelling House Ins. 
varied without being made inconsistent Co., 44 111. App. 156; Robertson v, 
with the order. M'Dermott v, Kealy, Maclin, 4 Hayw. (Tenn.) 53; Haywood 
7 Jur. 163. V. Marsh, 6 Yerg. (Tenn.) 69; Hodges 

PotitionAikingfor BehearingorBUlof v. Davis, 4 Hen. & M. (Va.) 400; 
Hoviow. — After a decree has been en- Roemer v. Simon, 91 U. S. 149; Plaits- 
rolled, a petition framed in the alterna- mouth First Nat. Bank v. Woodrum, 86 
tive asking for a rehearing or bill of Fed. Rep. 1004; Scott v, Hore, i 
review is bad for uncertainty. Hyde Hughes (U. S.)i63; Code Tenn. (1896), 
V, Donne, 2 Anstr. 551. p. 1784 (Chancery Rule 15), see also 

Exception in Favor of Minor Defendant, section 4847. 

— In Jackson v. Welsh, i Dr. & Wal. 8. In Alabama, when a decree is ren- 

255* the court, on the application of a dered in vacation, the time of applying 

minor defendant, who had attained his for a rehearing is extended by rule of 

full age subsequently to the enrolment court, and in such a case an applica- 

of the decree, reheard the cause as to a tion made by the second day of term 

particular matter appearing on the face following is in time. jS'jt/. Gresham, 

of the master's report, although the 82 Ala. 359. 

decree had been enrolled before the In the Diitrict of Colombia, equity 

application for a rehearing was made, rule 86. which is similar to rule 88 of 

1. Radge v. Berner, 30 111. App. 182; the United States Supreme Court, pro- 
Campbell V, Jacobson.44111. App. 238; vides that nonappealable orders may 
Thompson r*. Goulding, 5 Allen (Mass.) be reheard at any time before the end 
81. of the term next succeeding that at 

For a Contrary Fraetioe Prevailing in which a final decree is ordered and re- 

Xhode Island, see infra, I. 5. d. Time corded. Meloy v. Central Nat. Bank, 

Prescribed hy Statute. 6 Mackey (D. C.) 444- 

In Delaware a decree cannot be re- In Iowa it seems that by statute a de- 
heard on petition after it has been en- cree may be reheard after the end of 
tered and signed; the only remedy is the term. McGregor t/. Gardner, 16 
by an appeal or a bill of review. But Iowa 538. 

if the decree has been entered, but not United Statee Diitriot Court for Sonth- 

signed, it must be reheard on petition em Diftriot of Vew York. — In Petty v, 

or on a supplemental bill in the nature Merrill, 12 Blatchf. (U. S.) 11, the court 

of a bill of review. Cochran v. Couper, said: "Conformably to the generally 

2 Del. Ch. 27. recognized power of courts over their 

In Crockett w. Green, 3 Del. Ch. 466, own judgments and decrees, while in 

18 Encyc. PI. & Pr. — 2 17 Volume XVIII. 



laliMtfiAgf tn X^idtr. RE HE A RING. TiiiM of bung AfpUeatf mu 

c. Before Decree Acted upon or Time to Appeal 

Passed. — After the parties to a suit have acted upon a decree, 
and rights have been created thereby,* or where the time within 
which an appeal might have been taken has passed, it is too late 
to apply for a rehearing.* 

d. Time Prescribed by Statute. — Aside from the general 

principles just stated, special rules exist in some jurisdictions by 
which the time of application is limited to a definite period ; * 

paper or during the same term, the Philadelphia, etc., Pass. R. Co., 6 Pa. 

155th rule of the District Court for the Dist. 487, a decree under which a rail- 

Southern District of New Vork provides road company was authorized to lay 

for a rehearing, or, more literally, it certain tracks was allowed to be re- 

limits, in precise terms, the time with- heard on application of the adverse 

in which a rehearing may be granted, party, although such application was 

That rule is as follows: ' A rehearing not made until the railroad company 

will not be granted in any matter in had acted under the decree and laid its 

which a decree has been rendered, un- tracks. 

less application is made at the term And in an English case it was held 

when the decree is pronounced, or that the fact that a party had acted un- 

there ts a stay of proceedings by order der a decree did not bar his right to a 

of the judge.' That rule contemplates, rehearing. Brophy v. Holmes, 2 Mol- 

I think, a stay in the enrolment or loy i. 

final entry of the decree on the record, 2. Hitch v, Davis. 8 Md. 524; Craig 
although pronounced in form by the :*. Buchanan, i Yerg. (Tenn.) 141. 
court, and not a stay to enable the re- Contra. — In Benedict v. Thompson, 
spondent to try the experiment of an Walk. ^Mich.) 446, decided in 1844, it 
appeal to the Supreme Court, where was held that under rule 105 in force 
that court has no jurisdiction to review at that time (now rule loi) a rehearing 
the decree. Although the decree has could not be granted after the time to 
been pronounced, yet, while it has not appeal had elapsed. But this rule hav- 
been properly drawn up, settled, and ing been subsequently amended by the 
entered, this rule seems to allow an addition of the words *' unless upon 
application for a rehearing, if a stay of reasons satisfactory to the court," it 
such entry is procured, though the has been held in later cases that where 
ttXTA at which a decision was an- a satisfactory excuse is presented a re- 
nounced has passed." hearing will be allowed after the ex- 

Vnlted States Sapremo Court Bole. — piration of the time to appeal. Barnes 
Rule 88 oi the United States Supreme v. Grove, q7 Mich. 212. See also War- 
Court rules in equity provides that ner v. Juif, 38 Mich. 662. 
** no rehearing shall be granted after 3. In Bhode Island the entry of a de- 
the term at which the final decree of cree, although corresponding to enrol- 
the court shall have been entered and ment in England, is no bar to an 
recorded, if an appeal lies to the Su- application for a rehearing. In that 
preme Court; but if no appeal lies the state the jurisdiction of the Supreme 
petition may be admitted at any time Court in equity cases is original, and 
before the end of the next term of the since there is no manner of correcting 
court, in the discretion of the court." a decree without a rehearing or a bill 
Easton z/. I-Iouston, etc., R. Co., 44 Fed. of review, the same time has been 
Rep. 7; Newman v. Moody, T9 Fed. adopted by rule as in cases of an appli- 
Rep. 858. See also Moellet'. Sherwood, cation for a new trial, and a petition 
148 U. S. 21. for a rehearing may be filed at any 

But an application for a rehearing of time within one year from the date of 

a nonappealable decree filed after the the final decree. Hodges v. New Eng. 

end of the second term is too late, land Screw Co., 3 R. I. 9. 
Glenn v. Koonan, 43 Fed. Rep. 403. In Vermont, under rule 24 in chancery, 

1. Coster V, Clarke, 3 Edw. (N. Y.) a petition for a rehearing must be filed 

405; Home V, Barton, 8 De G. M. & and notice served on the adverse party 

O. 587. ^ within twenty days from the rising of 

But in Philadelphia, etc., R. Co. v. the court which rendered the decree. 

18 Volume XVIII. - 



SibMiingt In Sqaity* RE HE A RING. Time of Making AppUoation. 

and a longer time is generally allowed where a decree is rendered 
against a nonresident defendant on publication only than in other 
cases. ^ 

Potitioiis lUed After the Statntorj Time Has Expired, or after long delay, 
aside from any statutory limitation, are not regarded with favor, 
and will not be granted as of right.* 

French v, Chittenden, lo Vt. 127; years, and if he be so served, then 
Canerdy v. Baker, 55 Vt. 578. within one year from the lime of such 
1. Vonreeident Defendants. — Colomb service, petition to have the case re- 
V, Branch Bank. 18 Ala. 454. heard, and may plead or answer, and 
In Mississippi it was provided by an have any injustice in the proceedings 
early statute that nonresidents against corrected." A rehearing was granted 
whom decrees had been rendered on under this statute in a case where the 
pablication only might file petitions for defendant was a nonresident corpora- 
rehearing within five years after the tion, which was sued on a contract 
decree was rendered. Head v. Wash, made without the state, and where the 
31 Miss. 358. The same period was petition set forth all the facts necessary 
prescribed by the Code of 1657; but by to bring the case within the statute, 
the Code of 1871 the time was changed Smith v. Life Assoc, of America, 76 
to two years after decree rendered. Va. 380. But in a case where the ap- 
Under the enactment last named it plication was not made until more 
was held that the defendant was not than six years after the date of the de- 
deprived of his right ro a rehearing by cree, a rehearing was refused, and it 
the fact that he had full notice of the was also held that an order granting 
proceedings, but failed to appear, leave to file a petition does not stop 
plead, answer, or demur. Jacks v, the running of the statute; the petition 
Bridewell, 51 Miss. 881. And it was must be actually filed within the statu- 
also held that said limitation of two tory period. Woodson v. Leyburn, 83 
years applied to decrees in proceedings Va. 843. 

to confirm tax titles to land, Belcher v. For the present statutory provision 

Wilkerson, 54 Miss. 677; but not to in Virginia sec Code Va. (1887), § 3233. 

cases where the Court of Chancery 2. Ex p, Dunovant, 16 S. Car. 299. 

acted as a court of probate, and where Petition Filed in Vacation. — It is erro- 

the decree was made at the instance of neous for the court to give leave to file 

a guardian to sell his ward's interest a petition for a rehearing in vacation, 

in land, Rodney v. Seelye, 54 Miss, after the end of the term, and to re- 

537. And while section 519 of the verse its decree at the next term of the 

Code of 1892 prescribes a limitation of court. Parker v. Logan, (Va. 1887) 4 

two years in such cases, it has been S. E. Rep. 613. But if a rehearing is 

held that this section does not apply in had under such circumstances the order 

a case where a decree has been made made thereon will be allowed to stand, 

holding an infant as trustee of lands, provided it is substantially the same 

A/7d decreeing their conveyance, and as the original decree. Roanoke Nat. 

/ irA^re it is shown that one of the de* Bank v. Farmers' Nat. Bank, 84 Va. 

/ ^^ants has appeared, and that the 603. 

.^nt's rights have been fully repre- Period Prescribed by Order of the Conrt. 

^^^^X^€i by his father, who acted as his — Where the court in rendering a de- 

'^^reig^ti guardian. Hebron v. Kelly, cree also makes an order that it be kept 

^Ntlss. 1898) 23 So. Rep. 641. open for a rehearing at the next term, 

In Virginia it was provided by stat- on a point reserved, but that execution 

ute (Code 1873. c. 166, § 16) that "any of the decree be not stayed, and that 

unknown party, or other defendant, if a rehearing is not had at the next 

who was not served with process, and term the order shall not have any 

did not appear in the case before the effect whatever, if a rehearing is not 

dale of the judgment, decree, or order, had within the prescribed period it 

or the representative of any such, cannot be had afterwards. Campbell 

^*y, within five years from that date, r. Rice, 10 Yerg. (Tenn.) 199. 

H he be not served with a copy of such Cironmstances Ezensing Laohei. — 

indgfoeitt, decree, or order more than Where error is apparent on the face of 

& year before the end of the said five the decree it seems that there may be 

!• Volume XVIII. 



Bahoaringt in Equity. REHEARING. How AppUoaUon Is Xada. 

Petitioni to Behear Interlooutory SeeriM are not limited by any statu- 
tory bar,* but they may be refused, in the discretion of the court, 
where they are presented after long acquiescence in the decree.* 

e. Subsequent Action ON Petition Filed Within Statu- 
tory Period. — By the weight of authority the court has no 
power to act upon a petition after the statutory time for making 
the application has passed, even though it was filed within the 
required period.* 

6. How Applioation Ib Hade — a. In General. — A rehearing 
must be applied for by petition, and not by motion.* But where 

a rehearing even though the party has in the first part of that rule, and, there- 
been guilty of laches in making the fore, that a rehearing of a nonappeal- 
application. Ackland v, Braddick, 3 able order cannot be granted after the 
Jur. 39. end of the second term, even thouj^h 

And likewise it has been held that a the petition is filed within the statu- 
case may be reheard although the ap- tory time; and it was also held that an 
plication is not made until several order made on a petition after the ex- 
years after decree rendered, where it piration of the statutory period is 
appears that the decree was made utterly void, and that such order is not 
against a person who was not a party invalidated, or in any manner affected, 
or privy to the suit, and that he had by the fact that the adverse party has 
no notice thereof until shortly before subsequently obtained leave to plead, 
he filed his petition. Hamilton v. Distinguishing Clarke v. Threlkeld, 2 
Manby, 6 Bro. P. C. (Toml. ed.) 347. Cranch (C. C.) 408; Giant Powder Co. 

Rehearing Granted on Terms. — In v. California Vigorit Powder Co., 5 

Consequa v. Fanning, 3 Johns. Ch. (N. Fed. Rep. 197. And to the effect that 

Y.) 364, it was held that the court orders made after the statutory period 

might grant a rehearing although the are void, see also Sheffey v. Lewisburg 

application was not made in due time. Bank, 33 Fed. Rep. 315; Glenn v, 

but that in such a case the order grant- Noonan, 43 Fed. Rep. 403. 

ing the rehearing might impose terms 4. Boucher v. Boucher, 3 MacArthur 

on the petitioner if it appeared that the (D. C.) 453; Throckmorton v. Stout, 3 

application had been unreasonably Iowa 580; Hughes v. Jones, 2 Md. Ch. 

delayed. 289; Galloway v, Dunnington, 10 Lea 

1. ' Interlooutory Beorees. — Craig v, (Tenn.) 216; Harman v. Lewis, 24 Fed. 

Buchanan, i Yerg. (Tenn.) 141; Wright Rep. 530; Ex p, Cunningham, 3 Dcac. 

V, Strother, 76 Va. 857; Staples v. Sta- & C. 70. See in general article Peti- 

ples, 85 Va. 76; Noel v. Noel, 86 Va. tions, vol. 16, p. 500. 

109; Fowler V. Lewis, 36 W. Va. 112. In New York^ under the chancery 

While a bill of review to a final de- practice, it was held that an application 

cree cannot be brought after three would not be treated as a petition for 

years, a petition to rehear an interlocu- a rehearing unless it was made in due 

tory decree is not limited by any stat- form and according to the practice of 

utory bar. Instances may be found in the court. Gardner v. Dering, 2 £dw. 

which the court has reheard a case at (N. Y.) 131. 

the distance of eighteen years from the An Applioation by Motion Supported by 

time the decree complained of was Affidavits is irregular, and it is not 

pronounced. In one case the court error for the chancellor to refuse a re- 

refused to discharge an order for a re- hearing on the sole ground that it was 

hearing though at a distance of twenty- applied for in this improper manner, 

five years. Kendrick v, Whitney, 28 The application must be by petition, 

Gratt. (Va.) 646. as prescribed by the rules of chancery 

8. Rawlins v, Rawlins, 75 Va. 76. practice. Frazier v. Tubb, 2 Heisk. 

8. In the Federal Courts. — In Glenn (Tenn.) 662. 

V. Dimmock, 43 Fed. Rep. 550, it was Waiver of Objeotion to Irregularity of 

held that the word '* admitted," as Applioation. — The application should 

used in the second part of rule 88 of be by petition, but if it is made by mo- 

the United States Supreme Court, tion, and the adverse party does not 

pieansthesameasthe word*' granted " object thereto in the lower court, the 

20 Volume XVIII. 



ItliMiiiigt in Equity. REHEARING. How AppUoatton Is Made. 

a decree is interlocutory, and where the application embraces all 
the requisites of a petition, it will sometimes be treated as such, 
although not formally so styled.* 

b. Form and Contents of Petition. — In general form 
petitions for a rehearing resemble other petitions in equity.* 
The grounds on which the rehearing is asked must be fully 
stated;* signature by counsel is required; and all facts alleged in 

objection is waived. The irregularity tion, and where it could not prevail as 
of the procedure by motion cannot be a motion under the code because filed 
objected to for the first time in the ap- after expiration of the statutory time, 
pellate court. Peck v. Spencer, 26 Answer Treated as Petition for Behear- 
Fla. 23. ing. — In a suit for the settlement of 
1. In Virginia an application will be a decedent's estate, where a claim 
treated as a petition for a rehearing against the estate, consisting of a judg- 
when the decree which is attacked is ment confirmed by an interlocutory 
interlocutory, although such applica- decree, was filed by an intervener more 
tion is styled a bill of review, and is than four years after the rendition of 
filed as such. Laidley v. Merrifield, 7 the decree, it was held that the answer 
Leigh (Va.) 346; Ambrouse v. Keller, to said claim filed by the executor of 
22 Gratt. (Va.) 769. And vice versa^ a the decedent might be treated as a 
petition for a rehearing may be treated petition for a rehearing of the decree 
as a bill of review when the decree is confirming the judgment. Staples v, 
final. Summers v, Darne, 31 Gratt. Staples, 85 Va. 76. 
(\^a.) 791; Heermans v, Montague, In Vorth Carolina, where the error 
(Va. 1890) 20 S. E. Rep. 899. complained of is one of fact, in mak- 
Billof Keview Treated as Petition for ing an interlocutory order of reference, 
Bahearing. — In Sands v. Lynham, 27 and in confirming the report made by 
Gratt. (Va.) 291, H., a foreigner, hav- the referee, an application for reargu- 
ing died intestate and without known ment of the cause is not, strictly speak- 
heirs, his real properly escheated to the ing, a petition for a rehearing, but it 
state; G., a creditor, having recovered may be treated as such, or as a motion 
a judgment against the estate, obtained to set aside the order of reference, the 
a decree for the sale of the lands in order confirming the report, and the 
satisfaction thereof, and upon the sale decree pursuant thereto. Eason v, 
S. purchased the lands. An inquisition Billups, 65 N. Car. 216. 
of escheat was executed after the death 2. For the General Form of Petitions in 
of H., and the lands were advertised Equity see article Petitions, vol. 16, 
for sale as escheated property. S. p. 500. * 

(hereupon obtained an injunction for- 3. Wiser v. Blachly, 2 Johns. Ch. 

bidding the sale of the land, which in- (N. Y.) 488; Johnson v. Britton, Dud- 

janction was made perpetual by a de- ley Eq. (S. Car.) 24; Vermont Equity 

tree rendered against the escheator by Rule 24, 11 Vt. 695; Allis v. Stowell, 85 

default. Under these circumstances. Fed. Rep. 481; Giffard v, Hort, i Sch. 

and in view of a rule of practice pre- & Lef. 398. 

scribing that when a decree is by de- In Virginia the petition must state 

fault the party aggrieved must proceed by whom it is presented, and must also 

by motion or by a petition for a rehear- set forth the interest of the petitioner, 

ing, it was held that a bill of review the material facts upon which the de- 

subsequently filed by the escheator cree is founded, and the relief sought 

roiglube treated as a petition for a re- by the rehearing; it must be filed by 

hearing. leave of the court. Heermans v. Mon- 

Xotion to Bererse Decree. — In Ken- tague, (Va. 1890) 20 S. E. Rep. 899. 

<i(ick f. Whitney, 28 Gratt. (Va.) 646, it When Filed by a Vonresident against 

was held that a motion under Code whom a decree has been rendered on 

jS6o, c. 181, § 5, to reverse for error an publication only, it seems that the peti- 

interlocutory decree rendered by de- lion need not stale specifically the 

Uuh, might be treated as a petition grounds on which a rehearing is 

(or a rehearing where it contained all sought. In such a case it must set 

^ elements essential to such a peti- forth the proceedings in the cause or 

21 Volume XVIII. 



BehMuringi in Equity. REHEARING. How AppUoaUon Is MmAm. 

the petition which are not apparent on the record must be veri- 
fied by oath.* 

Vewly DiieoTered Evidenoe. — When a rehearing is sought on the 
ground of newly discovered facts or evidence, the appHcation 
must be in the form of a petition for leave to file a supplemental 
bill in the nature of a bill of review (or, if the decree is interlocu- 
tory, for leave to file a supplemental bill) and for a rehearing of 
the cause at the time when such bill is ready to be heard.* The 

refer to them in such manner as will time when the supplemental bill may 
show its condition, and must state the be ready for hearing. This practice 
nonresidence of the petitioner and that seems to have been long observed in 
the application is made within the England, and is said by Mr. Justice 
statutory time. Colomb v. Branch Story in Baker v. Whiting, i Story 
Bank, i8 Ala. 454. (U. S.) 233, to have been sanctioned by 
1. Onited States Supreme Court Chancellor Kent in Wiser «/. Blachly, 
Equity Rule 88; Tennessee Chancery 2 Johns. Ch. (N. V.) 488, and Livings- 
Rule 15. And see Alabama Chancery ton v. Hubbs, 3 Johns. Ch. (N. Y.) 134, 
Rule 82 (Code Ala. 1896, p. 1220); and by the Circuit Court in Rhode 
Ex p. Gresham, 82 Ala. 359; Meloy v. Island in Dexter v. Arnold, 5 Mason 
Central Nat. Bank, 6 Mackey (D. C.) (U. S.) 303. In Jenkins v, Eldredge, 3 
444. Story (U. S ) 302, where a decree si mi- 
Bole 88 of th« United States 8uprtm« lar to the one entered here had been 
Court EuIm in Eqnity provides that made, the same eminent judge thus 
" every petition for a rehearing shall strongly states the rule: ' The present 
contain the special matter or cause on application, if maintainable at all, 
which such rehearing is applied for, should properly. In its prayer, be for 
shall be signed by counsel, and the leave to file a supplemental bill to 
facts therein stated, if not apparent on bring forward the new evidence, and 
the record, shall be verified by the oath for a rehearing of the cause at the time 
of the party or by some other person." when the supplemental bill should be 
Signatoro of Counsel Dispensed With — ready for hearing. In my judgment it 
Exceptional Case.— In Leete v. Jenkins, would be against the settled principles 
14 W. R. 489, where an order had been and practice of courts of equity to 
made by a vice-chancellor on a cause allow the new evidence to be brought 
petition, leave was given to a person forward by a mere order on the peti- 
who was not a party to the cause, and tion. and, indeed, in this stage of the 
who had not been served with the cause, wholly irregular to admit it, ex- 
petition, to present a petition for a cept upon a supplemental bill, where 
rehearing, without the signature of testimony could be taken on both sides 
counsel. to meet the new exigencies of the 



t >> 



8. Fennimore z/. Rahow, i Del. Ch. case.' 

88; Owens V. Love, 9 Fla. 325; Finiay- And in Finlayson v. Lipscomb, 15 

son V, Lipscomb, 15 Fla. 558; Simpson Fla. 558, it was said: " The general 

V. Downs, 5 Rich. £q (S. Car) 421; rule is that if the final decree has not 

Mead v. Arms, 3 Vt. 148; Baker v. been signed and enrolled, or if, as is 

Whiting, I Story (U. S.) 218; Jenkins the case here, it has been signed and 

V. Eldredge, 3 Story (U. S.) 299; Head pronounced, but not recorded and en- 

V, Godlee, 6 Jur. N. S. 495. tered (as required by rules 3 and 87 of 

In Reeves v. Keystone Bridge Co., equity practice), and it is sought to be 

II Phila. (Pa.) 498, 33 Leg. Int. (Pa.) reheard upon error apparent on the 

149, the court, in considering this prac- face of the proceedings (not being a 

tice, said: " But it remains to consider clerical mistake or error arising from 

in what mode the rehearing prayed for any accidental slip or omission, rule 

must be applied for. In reference to 87), or upon such facts, not appearing 

this the practice seems to be well set- upon the face of the proceedings, as 

tied. It is by petition to the court for may be proven upon a rehearing — such 

leave to Ale a supplemental bill, setting as evidence duly taken in chief and 

forth the newly discovered evidence, omitted to be read, or evidence consti- 

and for a rehearing of the cause at the tuting new matter relating only to 

32 Volume XVIII, 



E«hiu^ ia Bftvity. REHEARING. How ApfUaiUm li muU. 

petition must allege affirmatively that the matter sought to be 
introduced is new matter which has been discovered since the 

rendition of the decree, and that it could not have been obtained 
in time for the hearing if the petitioner had used all due diligence 
in obtaining it; and these averments must be verified by 
affidavit.^ 

papers since found, nnd which may be AlAdavit of Doe Biligenoe. — In Vir- 

proved ffiva voce at the hearing, or to j^inia the fact that the evidence was not 

testimony going to show the incompe- discovered until after rendition of the 

tency of a witness in a former deposi- decree must be alleged in the petition 

tion. Dale v. Roosevelt, 6 Johns. Ch. itself, but the averment that it could 

(N. Y.) 255; Wendell v. Lewis, 6 Paige not have been piocured sooner by the 

(N. Y.) 233; Hill V. Chapman, i Ves. exercise of due diligence is contained 

Jr. 405 — then the petition for rehear- in a separate affidavit filed in support 

ing, authorized by the statute, is avail- of the petition. Trevelyan z\ Lofft, 83 

able for this purpose. If, however, a Va. 141; Armstead v. Bailey, 83 Va, 

final decree signed and pronounced, 242. 

but Dot recorded and entered, is sought In Maryland li is not enough to al- 
to be reheard on new facts, or facts lege or show that the matter wa« not 
discovered since publication passed, discovered until after decree rendered, 
the remedy is by a supplemental bill, It must be matter which could not 
ia the nature of a bill of review.*' have been discovered until after a d^ 
1. Boucher v. Boucher, 3 MacArthur cree, and the petition must allege that 
(D. C.) 453; Walsn z-. Smyth, 3 Bland it could not have been so discovered 
(Md.) 9; Dennett v. Dennett, 44 N. H. by the use of reasonable diligence. 
531; McDowell V. Perrine, 36 N. J. Eq. Hughes v. Tones, 2 Md. Ch. 289. 
632; Reeves v. Keystone Bridge Co., In N'ew Hampshire it was held that 
II Phila. (Pa.) 498, 33 Leg. Int. (Pa.) while in England it is enough to show 
149; Ex p. Dunovant, 16 S. Car. 299; that the facts or matters of evidence 
Corey v, Moore, 86 Va. 721; Summers were unknown at the time of publica- 
V, Darne, 31 Gratt. (Va.) 791; Armstead tion, here, from the difference of the 
r. Bailey, 83 Va. 242; Hicks v. Otto, 85 practice, it must be shown that they 
Fed. Rep. 728; Rintoul v. New Yorlc were unknown at the hearing, since. 
Cent., etc., R. Co., 20 Fed. Rep. 313. upon application, leave would be 
The ICatariali^ of th« New E^enoe granted to take further evidence until 
Vwt Be Shown by stating the nature of the hearing, in ^ny case where the 
^be testimony, and stating precisely want of the evidence would justify a 
^bat it will be when taken. It must rehearing. Dennett v. Dennett, 44 N. 
6f shown that the testimony really ex- H. 531. 

i%t!^ &od can be produced, and that the In the Federal Courts it has been held 

^l^licant has not been guilty of culpa- that a general averment of due dili- 

W^ negligence. Scales v. Nichols, 2 gence is not sufficient; the facts and cir- 

^^rg. (Tenn.) 140. cumstances constituting such diligence 

^lie Petition l^onld Be Aooompanied by must be stated specifically. Gillette v, 

^^^l^'^Tits of the witnesses relied on. Bate Refrigerating Co., 12 Fed. Rep. 

MLays v. Wherry, 3 Tenn. Ch. 219. 108. 

Averments Miut Be Specific. — The new An averment in general terms that 

tatter must be so stated that the court the petitioner has been eager to collect 

inay see on inspecting it that if it had all material evidence and that he has 

^cen brought forward it would prob- made great exertion and ^\^ty reason* 

^^^y have changed the character of the able effort to defend the suit is insufi- 

*^crec; and it must be so set forth that cient. Hicks v. Otto, 85 Fed. Rep. 728. 

the adverse party can answer it under- The facts to be proved and the wit- 

^^andingly, and thus present a direct nesses to be called must be set out in 

issae to the court. It is not sufficient the petition, and a general averment 

^^ allege that the petitioner expects to that certain facts were not known at 

prove certain facts; he must state the the time of the hearing is defective. 

evidence distinctly and file affidavits of McLeod v. New Albany, 66 Fed. Rep. 



finesses In support of his averments. 378. 
'^Muen V. Saunders, 75 Va, 563, 



The petition most state fully, iade« 
38 Volume XVIII. 



JUhMuringt In Sanity. REHEARING, How Applieation Ii Hade. 

c. Certificate of Counsel. — In the English Court of 

Chancery the petition was accompanied by a certificate of two 
counsel stating that in their opinion the decree was erroneous 
and ought to be reheard.* Such a certificate is required in some 
of the equity courts of this country.* 

//. Notice of the Applk:ation. — In modern chancery prac- 
tice the application for a rehearing is not an ex parte proceeding, 
and notice thereof should be given to the adverse party, who may 
thereupon file an answer to the petition, upon which petition and 
answer the application is heard.* 

pendently of the accompanying affi- Onderdonk, (Supm. Ct. Spec. T.) 3 

davits, the nature of the new evidence How. Pr. (N. Y.) 319. But the adverse 

relied on, and also the time when it party may waive this objection by 

first came 10 the knowledge of the peti- failing to raise it in time. Dempsey 

tioner. The affidavits accompanying v. Tylee, (Supm. Ct. Gen. T.) i Code 

the application should by distinct and Rep. N. S. (N. Y.) 360. 

positive allegations be made part of Praotioe in the Federal Conrts. — In 

the petition. Neither the petition nor Giant Powder Co. v, California Vigorit 

the affidavits in its support should be Powder Co., 5 Fed. Rep. 197, it was 

verified before a notary public who is held that an application for a rehearing 

also counsel for the petitioner. Allis in an equity court of original jurisdic- 

V. Stoweil, 85 Fed. Rep. 481. tion was not an ex parte proceeding, 

Verification by the petitioner's solic- rehearings in such cases being entirely 

itor to the effect that the petition is different from rehearings of appeals, 

true to his best knowledge, informa- The proper course of procedure in such 

tion, and belief is not sufficient. Page cases was said to be for the complain- 

V, Holmes Burglar Alarm Tel. Co., 2 ant to file a petition with the clerk of 

Fed. Rep. 330. the Circuit Court, and obtain from the 

1. Cunyngham v, Cunyngham. court or circuit judge an order upon 

Ambl. 89; Buckeridge v, Whalley, 8 the defendants to show cause on the 

Jur. N. S. 473. following rule day, or some other day 

It was not necessary that the counsel mentioned, why its prayer should not 

making the certificate should have been be granted. The defendants may then 

engaged in the case at the former hear* answer the petition, and ihe applica* 

ing. Malone v, Geraghty, 3 Dr. & tion will be heard upon such petition 

War. 252. and answer. In the case at bar the 

And in Re Midland Counties Ben. hearing was had before a justice of the 
Bldg. Soc, 4 N. R. 415, a petition for Supreme Court while holding the Cir- 
winding up a company which had been cuit Court for the District of California 
argued by one counsel only in the in the city of San Francisco, and a de- 
court below was allowed to be reheard cree was entered dismissing the com- 
upon the certificate of that counsel plainant's bill. In view of the proper 
alone. practice as above stated, it was held 

8. Hughes V, Jones, 2 Md. Ch. 289; that a rehearing could not be had ex 

Handy v. Andrews, 52 Miss. 626; Ex p. parte before the justice at Washington: 

Terry, Rice Eq. (S. Car.) i; Johnson but that after the petition had been 

V, Britton, Dudley Eq. (S. Car.) 24; properly filed in the Circuit Court of 

Vermont Chancery Rule 24, 11 Vt. 695. San Francisco the clerk of that court 

3. Throckmorton v. Stout, 3 Iowa would forward the petition and answer 

580; Dennett V. Dennett, 44 N. H. 531; to the circuit judge at Washington. 

Burch V, Newberry, (Supm. Ct. Gen. with the briefs filed by counsel, and 

T.) 3 How. Pr. (N. Y.) 271; Sheldon v. the application would then be taken up 

Barnard, (Ct. App.) 3 How. Pr. (N. Y.) and disposed of and the judgment of 

423; Giant Powder Co. v, California the justice sent to the Circuit Court 

Vigorit Powder Co., 5 Fed. Rep. 197; and there entered. 

Brandon v. Brandon, 2 Jur. N. S. 981; Contra — Ifotice Vnneoesiary. — In the 

French v. Chittenden. 10 Vt. 127. former Court of Chancery of New York 

Votioe of Appeal Cannot Be Converted a rehearing under the 70th rule was a 

into notice of a rehearing. Wilson v. matter of course, and notice of the 

24 Volume XVIII. 



Bikeaiingt in Squity. REHEARING. Practice on Behearing. 

e. Security for Costs. — In some jurisdictions the applicant 
is required to give security for the costs of the proceeding.* 

7. Motion to Take Petition from Files. — A petition which is 
defective in form, or which is filed in violation of a rule of the 
court, will be taken from the files on motion by the adverse party.* 

8. Practice on Kehearing — a. How Far Case Is Open, — It is 
generally held that a rehearing, when granted, opens the whole 
case to the respondent, but that for the petitioner it is open only 
as to the points complained of in the petition.* But where the 
order is for a rehearing generally, and is granted on the entire 
merits, the whole case is opened as to all parties.* 

petition was unnecessary. Harrison v. whole case to the respondent; the court 

Hull, Hopk. (N. Y.) IT2. And in will therefore examine questions which 

Johnson v. Britton, Dudley £q. (S. may have passed sub silentio at the 

Car.) 24, it was held that a petition for hearing before the chancellor, if raised 

a rehearing would be decided without by the pleadings and proofs. Southern 

argament. L. Ins., etc., Co. v. Cole, 4 Fla. 359; 

FtooeM UnneeegBary in Virginia. — In Smith v. Croom, 7 Fla. 180. 

Virginia^ while leave will always be Dependent on Tenns of Order Chranting 

given to any party to answer or deny Behearing. — The order for the rehear, 

an allegation of a petition, it is not ing generally specifies the points which 

Dsaal to require service of process, for are to be reheard, and where it does so 

matters requiring such service should specify the case will not be ^opened as 

be presented by the regular pleadings, to other points. White 7/. Carpenter, 2 

Where all of the parties have already Paige (N. Y.) 217. 

been served with process, or are before 4. Glover v. Hedges, i N. J. Eq. 

the court, there is no good reason for 113; Sparhawk v. Buell, 9 Vt. 41. 

farther process, and the practice in this A Question of Fact It Not Beyiewable 

respect is the same as prevails as to on a rehearing of a decree advised by 

supplemental bills. This rule, how- the vice-chancellor unless he certifies 

ever, applies only to petitions to rehear that it should be reheard upon the evi- 

interlocutorv decrees. ^Heermans v. dence. Swallow v. Swallow, 27 N. J. 

Montagae, ( Va. 1890) 20 S. E. Rep. Eq. 278. 

899. Behearing Granted, under Statute, to 

1. Schermerhorn v. New York, Nonresident Defendant. — Where a re- 
(Supra. Ct. Gen. T.)3How. Pr. (N. Y.) hearing has been granted, under the 
254: Exp. Terry, Rice Eq. (S. Car.) i; Mississippi statute, to a nonresident de- 
Atiy.-Gen. v, Brooke, 18 Ves. Jr. 496; fendant against whom a decree has 
Vowles V. Young, 9 Ves. Jr. 173. been rendered on publication only, it 

The English rule was to grant a re- is not necessary for such defendant to 

hearing upon payment of costs accrued, file an answer to the original appeal 

and security given for further costs, within the time limited by the statute 

In the old Superior Court of Chancery for applying for a rehearing. Such an- 

of Mississippi there was no provision swer may be filed after the rehearing 

as to costs, either accrued or future, has been granted, even though the 

but according to the present practice statutory period limited for the appli- 

sccarity for future costs is required, cation has expired. Head v. Wash, 31 

Handy v. Andrews, 52 Miss. 626. Miss. 358. 

2. Moss V. Baldock, 6 Jur. 403; A defendant who has brought his 
Wood V. Griffith, 19 Ves. Jr. 550. case within the provision of the stat- 

8. Consequa v. Fanning, 3 Johns, ute, and to whom a rehearing has been 

Ch. (N. Y.) 587; Dale v. Roosevelt, 6 granted, may make his answer in the 

Johns. Ch. (N. Y.) 255; Ferguson v. form of a cross-bill under Code 1871, 

Kimball, 3 Barb. Ch. (N. Y.) 616; § 1030 (Code 1892, § 536). After the 

Malonc v. Geraghty, 5 Ir. R. Eq. 549; application is granted the case is a 

Colchester 7'. Colchester, Sel.Ch.Cas. 13. pending suit, and the complainant may 

An Appeal in Eqoity le Substantially a dismiss his original bill. Belcher v. 

^c^Mriog of the cause, and opens the Wllkerson, 54 Miss. 677. 

25 Volume XVIII. 



BchMiiiigt in Equity. REHEARING. B«U«f anatad. 

b. What Evidence May Be Introduced. — Evidence duly 

taken in chief, but the reading of which at the hearing was 
omitted through negligence or other cause, may be read on the 
rehearing ; * and so may new evidence consisting of papers since 
found, and which may be proved viva voce at the hearing;* also 
evidence going to show the incompetency of a witness who testi- 
fied on the hearing, as for instance, that he has since been con- 
victed of perjury, or has admitted that he received a bribe.* It 
seems that a document put in evidence on the hearing may be 
withdrawn on the rehearing.* It is doubtful whether new evi- 
dence to the merits can be introduced in any case,* and this cer- 
tainly cannot be done unless a supplemental bill has been filed.* 

c. Order of Argument. — On a rehearing the petitioner is 
entitled to open and close the argument.'' 

9. Belief Granted. — If upon a rehearing the court is satisfied 
that the decree is erroneous it may be corrected in accordance 
with the prayer of the petition.® But if the order for rehearing 
is dismissed, or discharged by agreement of the parties, and no 

1. Dale V. Roosevelt, 6 Johns. Ch. record, extrinsic facts may be presented 
(N. Y.) 255; Jenkins v. Eldredge, 3 and considered when they are pertinent 
Story (U. S.) 306; Herring v. Clobery, 10 the case and are verified by affidavit. 
Cr. & Ph. 251 ; Cragg v. Alexander, 16 Ex p, Gresham, 82 Ala. 359. 

W. R. 961 ; Cunyngham v, Cunyngham, In Tenneuee Kewly Bisoovered Evidenoe 

Ambl. 90; Williams v. Goodchild. 2 May B« Taken and used on the rehear- 

Russ. 91. ing, and so may evidence in rebuttal, 

2. Dale v, Roosevelt, 6 Johns. Ch. or evidence explanatory of the testi- 
(N. Y.) 255; Higgins v. Mills, 5 Russ. mony offered on the hearing when the 
287. latter testimony acted as a surprise to 

When Kew Evidence Is Booomentary. the petitioner; but the court must be 
— Kew evidence may be admitted satisfied by affidavit of the materiality 
where it consists of documents that of the evidenoe. Scales r. Nichols, 2 
cannot have been tampered with, but Yerg. (Tenn.) 140; Whitman t/. Brother- 
fresh affidavits made by persons who ton, 2 Tenn. Ch. 396. 
have given evidence on the original 6. Jenicins ^..Eldredge, 3 Story (U. 
hearing cannot be read on the rehear- S.) 299. 

ing. Glover v, Daubeny, 9 Jur. N. S. 7. Sills v. Brown, i Johns. Ch. (N. 

90, Y.) 444; Ex p. Cunyngham, 3 Deac. & 

8. Needham v. Smith, 2 Vern. 463. C. 73. 

And see Sheldon v, Hawes, 15 Mich. 8. In Philadelphia, etc., R. Co. v, 

519. Philadelphia, etc., Pass. R. Co., 6 Pa. 

4. Ogle :•. Morgan, i De G. M. & G. Dist. 487, permission was given by a 

359. But see Whitman v. Brotherton, decree to the defendant, a railroad 

2 Tenn. Ch. 396. company, to lay its tracks on a certain 

6. Dale v. Roosevelt, 6 Johns. Ch. side of the street, and relief was denied 

(N. Y). 255; Lambe r. Orton, 33 L. J. to the complainant, but on a rehearing, 

Ch. 81. obtained by the complainant, it was 

If ew Evidenoe to the Merits May Be Ad- shown that the railroad company had 

mitted on a Behearin^ for the purpose of laid its tracks on the other side of the 

proving matters which were in issue on street from that prescribed by the de- 

the original hearing, and a petition for cree, and accordingly a decree was 

a rehearing may be amended to state made ordering the company to recon- 

the discovery of such new evidence, struct its tracks as ordered by the orig« 

Wyld V. Ward, 2 Y. & J. 381; White v. inal decree. 

Fussell, I Ves. & B. 153. If the Befendant Boes Hot Appear the 

Eztrlnsio Faota Verified by Affidavit. — complainant must take such decree aft 

While a petition for a rehearing must he can abide by. M*Canri v. 0'Con« 

be confined to the case made by the nor, 2 Dr. & War. 42. 

28 Volume XVIII. 



J 



BdiMriiigt in Equity. REHEARING. Subsequent Belieariagf. 

rehearing is had, the original decree stands without alteration.* 
As previously stated, the whole case is open to the respondent, 
and in a proper case more extensive relief than that granted by 
the original decree may be given to him.* 

10. Effect on Orig^intd Deoree — a. Of Petition Filed. — By 
the weight of authority the filing of a petition does not suspend 
the decree or extend the time for taking an appeal unless an 
express order of suspension is made by the court.^ 

b. Of Petition Entertained by Court. — In the federal 

courts, however, a petition which is entertained by the court and 
set down for hearing at a definite time suspends the time Hmited 
for an appeal or writ of error until the application is finally dis- 
posed of.* 

c. Of Order Granting Rehearing. — An order granting a 
rehearing does not, of itself, vacate the decree, but further pro- 
ceedings under the decree are usually suspended by express direc- 
tion of the court.* 

11, Subsequent Kehearings. — A second rehearing may be had 
under special circumstances, but it will not be granted as a 
matter of right,* and a special application for leave to file the 

1. Lockwood V. Bates, i Del. Ch. 435. had is short. Rogers v. Marshall, 12 

8. Sullivan v. Jacob, i Molloy 473. Fed. Rep. 614. 

8, Jacobs V. Bealmear. 41 Md. 484; In Voorhees v. John T. Noye Mfg. 

Wilcox V. Wilcox, i Ired. Eq. (N. Co., 151 U. S. 135, an entry was made 

Car.) 36. in the Circuit Court allowing an appeal 

Tfana for Sntering Appeal Bospended. — to the United States Supreme Court, 

In Meloy v. Central Nat. Bank, 6 but a petition for a rehearing was f^Ied. 

Mackey (D. C.) 444, the court said: and entertained by the court, and it 

**We think therefore that the motion was afterwards held that the action of 

for rehearing suspends the time for the court in entertaining the petition 

Entering an appeal from the decree up- operated to keep the cause within the 

•^'Z that motion is disposed of; when court's jurisdiction; and since, pending 

disposed of, the right of appeal remains, the consideration of the application, an 

•'^d the twenty days run from the date act had been passed giving to the Cir- 

(V^Ae disposition of the petition for the cuit Court of Appeals jurisdiction in 

/^/fearing." Citing Mercer v. Mercer, i cases similar to the one at bar, it was 

i^-^c Arthur (D. C.) 659. further held that upon the dismissal of 

A^ppeal and Petition for BehearingPend- the petition a new appeal must be 

i^K att flame Time. — Where there is an taken. 

*PP«al, and also a petition for a rehear- 6. Lockwood v. Bates, i Del. Ch. 435; 

mg of the decree appealed from, the Vose v. Internal Imp. Fund, 2 Woods 

*;n^Ument on the appeal will stand un- (U. S.)647; Piatt v. Howland, 10 Leigh 

Vl^ the petition can be disposed of. (Va.) 531. 

^<^tnlinson v, Tomlinson, 10 Rich. Eq. When a Behearlnsr Is OraiiUid on the 

vS. Car.) 300. Becord, and the court thinks that the 

*- Aspen Min., etc., Co. v. Billings, decree was not justified by the proof 

^50 U. S. 31; Goddard v. Ordway, loi as it stood, the decree should be set 

"•S. 745. aside until the rehearing is had; but 

. Where the court has ordered a peti- this is not the proper practice where a 

^bn to be heard and fixed a time for rehearing is had in order to allow ad- 

the hearing. It will suspend the execu- ditional proof; in such a case the de- 

^ion of the decree until the hearing is cree should stand pending the rehear- 

I'ad, at least in a case where it might ing. Rogers v, Marshall, 15 Fed. Rep. 

involve large expense to proceed under iq3. 

. Ac decree, and where the time which 6. Wilcox v. Wilkinson, i Murph. (N. 

i&ust elapse before the heating can be Car.) 11; Deerhurst v. St. Alban's, a 

\ 37 Volume XVIII. 



Scheuing of Appeali. REHEARING. I& eenonL 

petition is necessary.* 

When the Seoond Petition Ii Preeented by the flune Party who applied for 
the first rehearing it will be regarded with less favor than when 
presented by the adverse party.* 

n. KsHEABiva OF Appeals — 1. In Oeneral — a. Power to 
Grant. — While rehearings were allowed almost as a matter of 
course in the English Court of Chancery, which was a court of 
original jurisdiction, they have never been allowed with the same 
liberality in the English courts of appeal,* and in the United 
States, likewise, a distinction has obtained in this matter between 
equity courts of original jurisdiction and courts of appellate juris- 
diction only. In the former rehearings are allowed with con- 
siderable liberality, though not generally as a matter of course, 
but in the latter they are almost uniformly refused."* However, 
while the power to rehear appeals is seldom exercised, the 
appellate courts in most of the states undoubtedly have jurisdic- 
tion to grant such rehearings, and will do so under proper 
circumstances.* 

Russ. & M. 702; Mousley v, Carr, 3 for the construction of a will, the ad- 

Myl. & K. 205. ministratorof one of the devisees is not 

A Seoond Petition for a Rehearing Will prevented from filing a petition for a 

Be Befased where the objection to the rehearing by the fact that the devisee 

decree is not raised, and the opinion of himself has previously filed and with- 

the chancellor is not called thereto, un- drawn such a petition. Noel z\ Noel, 

til after a decision has been rendered, 86 Va. 109. 

and a petition for a rehearing on other 8. After Final Judgment in the Honse 

grounds has been overruled, and the of Lords, or in the Judicial Committee 

parties by mutual agreement have of the Privy Council, no rehearing is 

compromised the matter in litigation, allowed, unless for the purpose of cor- 

Jeter v. Jeter, 36 Ala. 391. recting mistakes in the form of the de- 

Where the application is based solely cree. Winchester r. Winchester, 121 

on evidence which is already before Mass. 127, aA'»^ Broughton v. Delves, 

the court, and which has been passed i Ridg. P. C. 514; Stewart v. Agnew, i 

upon adversely on the former rehear- Shaw 413; Tommey v. White, 3 H. L. 

ing, and where no manifest error is Cas. 49, 4 H. L. Cas. 313; Rajunder- 

shown, a second rehearing cannot be narain Rae v. Bijai Govind Sing, i 

granted. Rogers v. Riessner, 34 Fed. Moo. P. C. 117; The Singapore v. The 

Rep. 270. Hebe, L. R. I. P. C. 388. 

Seoond Petition for Rehearing of Orig- 4. Internal Imp. Fund v, Bailey, 10 

inal and Supplemental Ganses. — In Fuller Fla. 238; Longworth v. Sturges, 2 Ohio 

V. Willis, II Jur. 233, where a petition St. T04. 

for a second rehearing of an original " It is true, no courts are infallible, 

and of a supplemental cause was pre- but the usual mode allowed by law for 

sented after the lapse of fifteen years, correcting their errors is by appeal; 

the court granted the application in re- and it is only in courts of last resort, 

gard to the supplemental cause, since where there is no other remedy for an 

there was an evident error in the de- oversight or mistake, that rearguments 

cree, but refused to rehear again the are permitted, unless in extraordinary 

original cause. cases, and then only upon the failure 

1. Moss zr. Baldock, 6 Jur. 403; Mat- to present or notice an important le- 

ter of Direct Exeter, etc., R. Co., 3 gal question, or a recent statute or 

Macn. & G. 287. And see Maybcry v, decision." Per Robertson, C. J., in 

Brooking, 2 Jur. N. S. 76. Newell v, Wheeler, 4Robt. (N. Y.) 190. 

8. Land v. Wickham, i Paige (N. Y.) 6. In California the Supreme Court 

256. has power to grant rehearings in cases 

Petition by Administrator. — In a suit on appeal. Niles v, Edwards, 95 Cal. 

28 Volume XVIII. 



Saheariag of Appeals. REHEARING. In GenerftL 

ne Bnle in the United States Supreme Court is that no reargument will 

be granted unless some member of the court who concurred in 
the judgment doubts the correctness of the opinion and desires a 

further argument on the subject, and not then unless the proposi. 

41. This power is derived from the can review its decisions after the term 

coostitati6n (art. 6, g 4), and it cannot has elapsed. Hollowbush v. McCon- 

be abridged by legislative enactment, nel, 12 111.203; Cook v. Norton, 61 111. 

Thus it has been held that article 6, 285. 

§ 2, of the constitution, providing that In Indiana a rehearing may be had in 
a decision on appeal in one of the de- the general term of the Supreme Court, 
partments of the Supreme Court shall if applied for at the proper time and in 
be conclusive only where a rehearing the proper manner, although rehear- 
in bank is not ordered, does not by im- ings on appeal were unknown at com- 
plication prohibit a rehearing in bank mon law. The Revised Statutes do 
of a case which has been decided in not expressly provide for rehearings in 
bank in the first instance, and has such cases, but the power to grant 
never teen heard in department; and them is implied therein, and the pro- 
fa aher it has been held that section 45 ceedings on the rehearing are gov- 
of the Code of Civil Procedure, provid- erned by the general rules of the Civil 
iog that where there has been no de- Code. Terrell z^. Butterfield, 92 1 nd. i. 
cision in one of the departments, an In Massachnfletts it is not the practice 
order granting a rehearing after judg- of the Supreme Judicial Court to re- 
ment in bank must be in writing signed hear appeals in ordinary cases, but the 
hy^ five justices is unconstitutional, full court may grant a rehearing, in 
heing in conflict with article 6, § 2, of its discretion, in exceptional cases, 
the constitution, which provides that a Nashua, etc., R. Corp. v. Boston, etc., 
*?4Jority of the court, to wit, four jus- R. Corp., 169 Mass. 157. But where, on 
^^^s, may decide any matter within the appeal to the full court, a decree of a 
j^nsdiction of the court. Matter of single justice determining a defend- 
■J^ssup^ 81 Cal. 408, citing Lux v. Hag- ant*s liability and ordering the case to 
^'^9 69 Cal. 255; Bull V. Coe, 77 Cal. be sent to a master to state the account 
54t ^A<i distin/ruishing Hegard r. Call- between the parties is aflSrmed, the full 
JQ^fjisL Ins. Co., 72 Cal. 535. In the court will not grant a rehearing on the 
^^^erlor Court, however, rehearings question of the defendant's liability, 
^^ xin known. Fabretti v. Santa Clara when the application is made on a sec- 
(^cfunty, 77 Cal. 305. . ond appeal from a decree of the single 
b Florida rehearings in the Supreme justice ordering judgment in accord- 
Court are authorized by rule of court, ance with the master's report. Lincoln 
tut are seldom allowed. The right v, Eaton, 132 Mass. 63. 
beingr (^^j^ derived solely from rule of In Montana a rehearing may be had 
court, it follows that an act of the leg- to reverse errors in a decision of the 
islature directing a rehearing is im- Supreme Court. Barkley z^. Tieleke, 2 
proper, being the exercise of a power Mont. 433. 

belonging exclusively to the judicial In Vew Hampehire the Supreme Court 

^Partment. Internal Imp. Fund v, has jurisdiction to grant rehearings of 

Bailey^ 10 Fla. 238. its own judgments on appeal. Russell 

iii Illinois a party who has been de- v. Dyer, 43 N. H. 396; Weare v, Decr- 

icated in the appellate court may either ing, 60 N. H. 56. 

^*A^^^ for a rehearing or pray for a cer- In New Jersey it has been said that 

Uncate of importance to enable him to the power to grant rehearings of ap. 

appeal to the Supreme Court. These peals should be exercised only in ex- 

are alternative remedies, and the party traordinary cases, especially when not 

cannot ordinarily have both, unless it suggested by the court. Murphy v. 

^ in a case where the petition for a re- Farr, 11 N. J. L. 186; King v. Ruck- 

".^^'^nR can be disposed of before the man, 22 N. J. Eq. 551; Cassedy v. 

^oie limited by statute within which Bigelow, 27 N. J. Eq. 505. 

^ ^Pply for a certificate of importance In New York the former Court of Com- 

'^^s elapsed. Oberne v. Bunn, 39 111, mon Pleas had jurisdiction to order a 

^PP. 122. And a rehearing is the only rehearing of judgments in cases on ap- 

^^lho4 by which the Supreme Court peal from the District Court. St. 

99 Volume XVI 1 1, 



BAhMuring of Appeali. REHEARING. In GennsL 

tion receives the support of the majority of the court ; but under 
these conditions the court will order a reargument without wait- 
ing for the application of counsel.* This rule has been adopted 
by appellate courts in several of the states.* 

b. What Decisions May Be Reheard — Dooiiions wuch Are 

final. — A rehearing will be more readily granted where the 
decision of the appellate court is final than in cases where the 
judgment of the lower court is reversed and the case remanded.* 

Michael's Protestant Episcopal Church In Virginia it was held in an early 

V, Behrens. (C. PI. Gen. T.) lo Civ. case that the Court of Appeals, with 

Pro. (N. Y.) iSi; McAveney v. Brush, the consent of the parties to the suit, 

(C. PI.) 35 N. Y. Supp. mo. By the might review its own decisions by 

constitution, art. 2, §§ 2, 5, this juris- means of a rehearing. Bogle v. Fitz- 

diction of the Court of Common Pleas hugh, 2 Wash, (Va.) 213. And in a 

has been transferred to the appellate later case it has been held that the Cir- 

division of the Supreme Court, and cuit Court, after affirming a decree of 

that court now has jurisdiction to re- the County Court, may grant a rehear- 

hear appeals. Hopkins v. Clark, 149 ing not only of its own decree of affirm* 

N. Y. 329. And in Slocum v. Fair- ance but also of the original decree of 

child, 7 Hill (N. Y.) 292, it was held the County Court. Summers ». Dame, 

that the Supreme Court might rehear 31 Gratt. (Va.) 791. 

a judgment which it had rendered, For further authorities as to the 

ordering a new trial. power of appellate courts in the various 

In North Carolina judgments of the states to grant rehearings see infra. 

Supreme Court may be set aside on re- II. 2. Grounds. 

hearing, but every presumption is in 1. Washington Bridge Co. r. Stewart, 
favor of such judgments, and alleged 3 How. (U. S.)4i3; Brown v, Aspden, 
errors therein must be clearly pointed 14 How. (U. 8)25; Ambler v. Whip- 
out. Weisel z/. Cobb, 122 N. Car. 67. pie. 23 Wall. (U. S.) 278; U. S. ». 

In Ohio rehearings, as known in the Knight, i Black (U. S.) 488. 
English Court of Chancery and in other The rule applies even where the case 
equity courts of original jurisdiction, is a suit in equity and where the de- 
are not recognized in the Supreme cision was rendered by a divided court. 
Court, the remedy by petition therefor, Brown v. Aspden, 14 How. (U. S.) 
authorized, by section 56 of the Act of 25. 

1831, having been abolished by the In the Court of Claims a similar rule 

Code of Civil Procedure. Myres v, has been adopted, to wit, that a re- 

Myres, 6 Ohio St. 221; Longworth «/. hearing will not be granted where there 

Sturges, 2 Ohio St. 104; Corry j/. Camp- has been no oversight or misapprehen- 

bell, 34 Ohio St. 204. Rehearings in sion in the nature of mistake of fact, 

the Supreme Court, therefore, are unless one of the judges who concurred 

purely statutory, and the petition will in the judgment desires a reargument 

be refused unless it comes within the after examining the grounds on which 

provisions of section 542 of the code; a rehearing is asked. Fendall's Case, 

nor can such a petition be granted after 12 Ct. of CI. 305. 

the term at which the judgment was 2. The United States Sapreme Court Bale 

entered unless the case is within the Has Been Adopted by the Court of Ap- 

provisions of the code above referred ^g^\s in Maryland, Kent v. Waters, 18 

to. Zinkf. Grant, 26 Ohio St. 378. In Md. 53; Johns v. Johns, 20 Md. 58; 

Maud V. Maud, 34 Ohio St. 54.0, it was Roman v. Mali, 42 Md. 513. And also 

held that the Supreme Court had no by the Supreme Judicial Court of i9/dj-- 

power to rehear a case decided by the sachusetts. Winchester v, Winchester, 

Supreme Court commission. 121 Mass. 127. 

In South Carolina judgments rendered 8. Tunstall v. Walker, 2 Smed. & M. 

by the Supreme Court after full argu- (Miss.) 638. 

ment will not be reheard except for the In Louisiana a rehearing will not be 

strongest reasons. Ex p. Dial. 14 S. granted where a decree rendered by the 

Car. 584; Burn v, Poaug, 3 Desaus. (S. Supreme Court is interlocutory, as, for 

Car.) 596. instance, a decree overruling a motion 

80 Volume XVIII. 



Bdmffinff of Aspeab. REHEARING. Oronnds. 

In Caaat InToWing Fraudulent Transaotioni. — Rehearings will not be 
granted for the purpose of considering gains or losses between 
parties engaged in an enterprise of aiding or abetting fraudulent 
transactions.* 

In Criminal Oaaat. — In jurisdictions where the courts have power 
to rehear appeals it is generally held that this power extends to 
criminal cases.' 

c. Allowance of Rehearing — DiioreUon of the court — An 

application for a rehearing of an appeal addresses itself to the 
discretion of the court, and its decision in the matter is final.' 

2. OroniLds — a. Error in the Decision — In General — 

(i) Error of Law or Misapprehension of Facts, — A rehearing 
may be had for a clear mistake of law in the decision,* or where 

to dismiss an appeal. Edwards's Sue- which is certified to the court below, 

cession, 34 La. Ann. 216. State v. Jones, 69 N. Car. 16. 

1. Reeg V. Burnham, 55 Mich. 39. When tiie Application Is Made for Delay, 

In Holloway v. Stevens, (Supm. Ct. and the grounds urged are frivolous, a 

Gen. T.) 48 How. Pr. (N. V.) 129, an rehearing of a criminal appeal will be 

agent, without the knowledge of his denied. People v. Jugigo, (N. Y. 1890) 

principal, entered into an agreement 25 N. E. Rep. 317. 

wiih a third person providing that the 8. Center Tp. v. Marion County, no 

principars property was to be sold on Ind. 579; Prettyman t/. Barnard, 37 111. 

execution issued in favor of said third 105; Summers v. Darne, 31 Gratt. (Va.) 

person, and bought in by the agent, 791; Blair i/. Dillaye,(Ct. App.) 3 Howl 

and that the proceeds of the sale were Pr. (N. Y.) 422. 

not to be returned in case the judgment The action of the highest court of the 

was reversed. This agreement was state in granting or refusing a rehear- 

executed by the parties, but the judg- ing of an appeal is not reviewable by 

mcnt having subsequently been re- appeal to the United States Supreme 

versed, an order was made directing Court. Steines v. Franklin County, 14 

restitution of the proceeds of the sale Wall. (U. S.) 15. 

to the principal. This order was A petition for a rehearing of a case 

affirmed on appeal, and a petition for decided by the full court is addressed 

a rehearing of the order of affirmance exclusively to the discretion of the 

was refused on the ground that the court, and will not be granted, nor its 

court would not reconsider the agree- arguing permitted, unless upon inspec- 

ment, as it was against public pdlicy. tion of the petition the court so orders. 

8. In Iowa the provisions of the code Lincoln v. Eaton, 132 Mass. 63; Win- 

concerning rehearings are applicable in Chester v. Winchester, 121 Mass. 127. 

criminal cases, and in favor of the state Ezoeptions to the Bole. — In Louisiana 

as well as of the defendant. State v, it seems that counsel are entitled as a 

Jones, 64 Iowa 349. matter of right to a rehearing of a case 

la Texas it was stated in Garner v. on appeal where the Supreme Court is 

State, 36 Tex. 693, to be doubtful unable to make up its judgment within 

whether the Supreme Court had the period limited by law. Morgan v. 

anthority to grant rehearings in crim- Livingston, 6 Mart. (La.) 19. And they 

inal cases. But in Drake v. State, 29 are also entitled to three judicial days 

Tex. App. 265, it was held that the after the decision of an appeal in which 

Stiprcme Court might firrant a rehear- to apply for a rehearing and in a case 

ing in a criminal case, during the same where this right is denied, it may be 

term, after judgment of conviction had enforced by mandamus. State v. 

been reversed and the case remanded. Judges, 48 La. Ann. 1079. 

In Korth Carolina the Supreme Court 4. Arizona Prince Copper Co. v. Cop- 

^»s no power to entertain a petition for per Q^^cn Copper Co., (Ariz. 1886) 11 

a rehearing in a criminal case. In Pac. Rep. 396; Hintragerv. Hcnnessy, 

such cases the court does not pass judg- 46 Iowa 600; Smith v. Walker, 57 Mich, 

ment, bat simply gives its opinion, 457; Lewis v. Rountree, 81 N. Car. 20; 

81 Volume XVI IL 



1 



Behearing of AppaiOi. REHEARING. Chroimdi. 

it appears that the appellate court misapprehended the record, 
and was mistaken as to facts occurring on the trial of the cause 
in the court below.* But in order to be available such error or 
misapprehension must be in a matter materially affecting the cor- 
rectness of the decision.* 

Weathersbee v. Farrar, 98 N. Car. under the circumstances oi the case, 

255. was admissible. Hooper v. Beecher, 

In Lawrence v. Metropolitan El. R. (Supm. Ct.) 7 N. Y. St. Rep. 405. 

Co., (C. PI.) 10 N. Y. Supp. 743, which In an Aotlon of Sepleyin, where it was 

was an action for an injunction, judg- made to appear that in a former action 

ment for the plaintiff was reversed on between the same parlies the Supreme 

appeal on the ground that the trial Court had misunderstood the facts of 

court had admitted incompetent testi- the case, and had wrongfully dismissed 

mony in behalf of the plaintiff. But a an appeal, a rehearing was granted 

rehearing of the appeal was afterwards both of that appeal and of the appeal 

granted, since it appeared that the ad- in the replevin case. Gravenstine r. 

mission of the testimony in question Feger, (Pa. 1886)4 Atl. Rep. 917. 

simply affected the amount of damages, 2. Baker v. Gausin, 76 Ind. 317; 

and did not affect the plaintiff's right Teaz v, Chrystie, 2 E. D. Smith (N. Y.) 

to the injunction. 635; Blackwell v. Wright, 74 N. Car. 

The General Porpose of a Behearing is 733; San Antonio v. Grandjean, 91 Tex. 

to have corrected some error of the Su- 430; Torrent v. Duluth Lumber Co., 32 

preme Court in passing on errors of law Fed. Rep. 229. 

assigned in the record on appeal, aris- Errors Held to Be Immaterial. — A re- 

ing from misapprehension of the law hearing will not be granted for a mis- 

or misapplication of the law to perti- take of the appellate court in holding 

nent facts appearing in the record in that a certain contract is a conveyance 

connection with' the errors assigned, in fee, where the determination of this 

and the Supreme Court will not grant question does not materially affect the 

a rehearing on the ground of mistake correctness of the decision. Genet v. 

or error of fact, Weathersbee v. Far- Delaware, etc., Canal Co., 137 N. Y. 

rar, 98 N. Car. 255, citing Wilson z'. 626, 51 N. Y. St. Rep. 206; nor for a 

Lineberger, 90 N. Car. 180; Lockhart mistake of the court concerning the 

V, Bell, 90 N. Car. 502; Barcroft v. nature of a warranty in a deed, Christy 

Roberts, 92 N. Car. 249. v. Burch, 25 Fla. 978; nor on account 

1. Arizona Prince Copper Co. v. Cop- of the fact that the opinion of the ap- 

per Queen Copper Co., (Ariz. 1886) 11 pellate court declares certain securities 

Pac. Rep. 396; Derby v. Gallup, 5 to be valueless, whereas a referee has 

Minn. 119. Contra^ Ft. Worth Pub. Co. refused so to find, where it appears that 

v,\ Hitson, 80 Tex. 216; Rust 7^. Gar- such .expression cf opinion will not 

many, 36 Ga. 257. prejudice the party on a new trial, 

ninstrations of Bole. — Where the ap- Griggs v. Day, 137 N. Y. 542, 50 N. Y. 

pellate court reverses a judgment on St. Rep. 87. 

the mistaken supposition that all the Immaterial UiBapprehension of Facts. — 
evidence in regard to a particular point A rehearing cannot be had on the 
was excluded in the trial court, and on ground that the appellate court was 
the ground that such exclusion was mistaken in assuming that a certain 
erroneous, a rehearing will be granted question was submitted to the jury on 
if it is shown that similar evidence to the trial where buch mistaken assump- 
that excluded was in fact admitted tion is immaterial. Cobbs v, Philadel- 
without objection, and that the ex- phia F. Assoc, 68 Mich. 465. Nor will 
eluded evidence was merely cumula- it be granted for a mistaken assump- 
tive. Doyle V. Manhattan R. Co., (C. tion to the effect that a certain witness 
PI.) II N. Y. Supp. 65. was in attendance at the trial, and 

And, on the other hand, if the appel- could have been called to contradict 

late court has reversed a judgment on the testimony of one of the parties, 

the mistaken supposition that certain where it is shown that the evidence of 

evidence received in the court below such witness would have been merely 

was inadmissible, a rehearing will be cumulative. Ritter v. Phillips, 35 N. 

granted if it is shown that the evidence, Y. Super. Ct. 388. 

32 Volume XVIII. -r 



lUhMudBg of AppMli. REHEARING. emadk 

WhATO tlu Detcrmiiiation of tlM Gaie Ii flulMtaiitially Oorreet, applications 
for reargument based on immaterial mistakes, such, for instance, 
as a slight error in the amount of money allowed by the judg- 
ment, are not regarded with favor ; * and a rehearing will never 

be granted where it is clear that it would be ineffectual, and that 
the original decision would remain unaltered.* 

1. Simpkinson v, Sanders, (Ky. 1888) People r. Moran, (Cal. 1892) 31 Pac. 
7 S. W. Rep. 613; Macaaley v, Elrod, Rep. 853: Humphreys v. Allen, 100 
(Ky. 1895) 29S. W. Rep. 734; May v. 111. 511; Tecumseh Nat. Bank v. 
Kellar, i Mo. App. 381; Goodman v, Saunders. 51 Neb. 801; State v, Wood- 
Cohen, (C. PI.) II N. Y. Supp. 65; bury, 17 Nev. 337; Wallace r. Din niny, 
Newell r/. Wheeler, (N. Y. Super. Ct. (C. PI. Gen. T.) 12 Misc. (N. Y.) 635; 
Gen. T.) 2 Abb. Pr. N. S. (N. Y.) 134. Fisher v, Merwin, (C. PI.) 25 How. Pr. 

Slight Error in Amount of Verdict or (N. Y.) 284. 

Judgment — A rehearing will not be In Powell v, Bunger, 91 Ind. 64, the 

granted for a slight error in the amount appellate court reversed a judgment in 

of the verdict where it is not claimed favor of the plaintiff rendered by the 

that such verdict exceeds the amount trial court. In a petition for a rehear- 

of damages claimed in the petition, and ing it was shown that the complaint 

where no assignment of error has been was in two paragraphs, setting up dis- 

made on this ground, nor reference tinct causes of action, and the peti* 

made thereto in the motion for a new tioner contended that even though the 

trial in the lower court, Weir Plow Co. appellate court was correct in holding 

p. Armentrout, 9 Tex. Civ. App. 117; that the trial court erred in overruling 

nor because it is conceded that the in- a demurrer to the second paragraph, 

terest was computed from a wrong yet it should have reversed the judg- 

date, and that, as a result, the judg- ment only so far as it was based upon 

ment is too large by a small amount, that paragraph, and should have 

especially where the successful party affirmed it as the cause of the action 

offers to remit the excess, Gere v, stated in the first paragraph. But it 

Council Bluffs Ins. Co., 67 Iowa 272. was held that the error of the trial 

Failure of Special Yerdiet to Find Facts, court in overruling the demurrer to the 

— A rehearing cannot be had on the second paragraph was carried into the 

ground that the special verdict did not verdict and judgment; that il would 

find the facts on which the judgment have been improper, while the verdict 

rests, where it is conceded that the was permitted to stand, to set aside the 

judgment, as modified on appeal, judgment merely as to a portion of the 

allows the plaintiff all that she is en- relief granted and to affirm it as to 

titled to under the averments of her the remainder; and that a rehearing 

complaint. Evans v. Bentley, 9 Tex. could not be granted for the purpose of 

Civ. App. 112. altering the judgment in this manner. 

Mere Tedhnieal MistriaL — On a trial Act of Legislatare Anthoriiing Sehear. 

at the circuit, the court directed a ver- ing. — The court will not grant a re- 

dict for the plaintiff subject to the hearing where it would be ineffectual, 

opinion of the court at general term, even in a case where the legislature by 

but the latter court set aside the ver- a special act authorizes it to review 

diet on the ground that the plaintiff certain judgments rendered at a preyi- 

was not legally entitled to recover. On ous term. Such an act is probably in. 

a motion for a reargument it was held valid, as it is the exercise of a power 

that this was simply a mistrial and that properly belonging to the judicial de- 

the proper course for the general term partment; but conceding that it is 

would have been to review the proceed- valid, it will be treated as permissive 

ings and order a new trial, but since merely, and not as mandatory. Dorsey 

the former decision accomplished the v. Gary, 37 Md. 64. 

same end, and subsuntial justice had £zception to Bnle. — In Fenstermaker 

been done, the motion for a rehearing z\ Tribune Pub. Co., 13 Utah 532, a 

was denied. Coogan v. New York, 2 rehearing was granted although it was 

Thomp. & C. (N. Y ) 667. conceded that the original judgment 

8. Where Sehesring Would Be Ineffect- must remain substantially unaltered, 

^«L — Clark t/. Roots, 50 Ark. 188; since it appeared that one of the 

x8 Encyc. PI. & Pr. — 3 88 Volume XVIII. 



BahiMiiig of Appeida. REHEARING. emiadi. 

(2) Erroneous Reasons for Correct Decision. — Where the 
decision is admittedly correct a reargfument will not be allowed 
on the ground that the reasons assigned by the court in its 
opinion are erroneous, or that stress is laid upon an immaterial 
fact ; * and a judgment based on several grounds will not be 
reviewed as long as it appears that any one of the grounds assigned 
is valid.* 

(3) Decision Based on Points Not Raised Below, — Where the 
decision of the appellate court is based on points which were not 
considered in the court below, or on the hearing of the appeal,* 
or where a judgment is affirmed on a theory totally different from 
that on which it was rendered by the trial court, a rehearing may 
be had * 

adges, being disqualified, did not sit of damages, a rehearing will be de- 

on the hearing, that the concurrence of nied although it appears that the other 

one of the two judges who did sit was grounds for reversal stated in the opin- 

limited to the result, that the opinion ion of the appellate court, are errone- 

overlooked a material point raised on ous. The erroneous charge of the 

the hearing, and that it announced lower court having been duly assigned 

rules of law which required modifica- as error, the Supreme Court cannot 

tion and explanation to prevent their speculate as to its effect on the judg- 

misapplication upon a new trial. ment and grant a rehearing in order to 

1. Wilson V, Vance, 55 Ind. 584; review and sustain such judgment. 
Johnston v. Davis, 61 Mich. 278; Earp Taylor, etc., R. Co, v. Warner, 84 Tex. 
ff. Richaidson, 81 N. Car. 5; Thomp- 122. 

son V. Hnron Lumber Co., 4 Wash. 600. 3. Caldwell v. Western M. & F. Ins. 

Where an examination of the record Co., 19 La. 48; Derby v, Gallup, 5 

shows that the judgment appealed Minn. 119; Van Etten v. Newton, 15 

from would necessarily be affirmed on Daly (K. Y.) 538. 

the evidence, a rehearing will nol be The rule does not apply where the 

granted, although the court based its points in question were suggested by 

affirmance of the judgment on the the facts in evidence, and the attention 

ground that the bill of exceptions was of the counsel was called to them at 

not filed within the required time, and the hearing, and where no objection 

the petition for a rehearing shows that was then made that they had not been 

the time was extended b/ stipulation, raised in the trial court. Oliver v, 

Anderson v. Anderson, 141 Ind. 567. French, (Supm. Ct.) 32 N, Y. Supp. 

When the court has dismissed an 576; Davis v, Bonn, (Supm. Ct. App. 

appeal, basing its decision on the in- T.) 16 Misc. (N. Y.) 365. 

completeness of the transcript, and an 4. lUiutration of Bole. — In Miller v. 

application for a rehearing is made, it King, 88 Hun (N. Y.) 181, the case was 

may sustain its previous ruling for the tried and judgment was rendered in 

additional reasons that the judgment the trial court on the theory of a 

appealed from was not signed, and breach of contract in ejecting a passen- 

that the application for an appeal was ger from a railroad train before he had 

therefore premature. Smith z/. Orleans reached his destination. Conceding 

R. Co., 34 La. Ann. 1160. that this theory was correct, the plain^ 

2. Judgment Based on Several Grounds, tiff was entitled only to actual dam- 
— Hahn v. St. Clair Sav., etc., Co., 50 ages, which in this case would have 
111. 526; Case V, Johnson. 7c Ind. 31; amounted simply to nominal damages 
Garrett v. Ashcraft, (Ky. 1895) 30 S. W. (since he was within a very short dis- 
Rep. 625; Builer-Ryan Co. v. Silvey, tance of his destination when ejected), 
(Minn. 1897) 73 N. W. Rep. 510; Tall- and it was apparent therefore that the 
man v. Ely, 8 Wis. 218. damages allowed by the lower court 

In an Aetion for Personal Injuries, were excessive. At the general term, 

where the judgment of the lower court however, the case was tried and judg- 

has been reversed for an error in the ment was affirmed on a totally different 

charge of the court as to the measure theory, to wit, that the action of the 

84 Volume XVHI. 



Heheftring ti Appaali. REHEARING. Qrounds. 

6. Material Point Overlooked — Conflict with Stat- 
ute or Controlling Decision — (i) In General, — A rehear- 
ing will be granted where it is shown that some question decisive 

of the case and duly submitted by counsel has been overlooked 
by the court, or that the decision is in conflict with a statute or 
a controlling decision to which the attention of the court was not 
drawn, through the neglect or inadvertence of counsel.^ A peti- 

conductor in ejectinf^ the passeng^er New York. — Mount v. Mitchell, 32 
amounted to a tort. In view of these N. Y. 702; Marine Nat. Bank v. Na- 
ctrcurostances a rehearing of the appeal tional City Bank, 59 N. Y. 67; Fosdick 
was allowed. v. Hempstead, 126 N. Y. 651; Curley v. 
(liialliloatiOB of Bole. — In Jones v. Tomlinson, 5 Daly (N. Y.) 283; Banks 
Castor, 96 Ind. 307, a rehearing was v. Carter, 7 Daly (N. Y.)4i7; Bolles z/. 
claimed by the appellant on the ground Duff, 56 Barb. (N. Y.J 567; Newell 
that the brief of the appellee, as origi- «-. Wheeler, 4 Robt. (N. Y.) 190; 
nally prepared, contained no statement Myers v. Dean, (C. PI. Gen. T.) 10 
of one of the points on which the deci- Misc. (N. Y.) 402; Duncan v. Root, 
sion of the court was based, and that (C. PI.) 4 N. Y. Supp. 613; Mahon v. 
this point was *' surreptitiously in- Sewell, (C. PI.) 7 N. Y. Supp. 600; 
serted in the brief and pressed upon Sadlier v. Riggs, 15 Daly (N. Y.) 522; 
the court.' The application, however. Eagle Tube Co. z'. Edward Barr Co., 
was refused, the court saying: " It is 16 Daly (N. Y.) 212; Martine v. Huy- 
not unusual to file an additional brief lar, (Supm. Ct.) 12 N. Y. Supp. 66; 
or to add new matter to an existing Compton v, Heissenbuttel, (C. PI.) 18 
brief, and under rule 16 of this court, N. Y. Supp. 952; Barnum v. Fitz Pat- 
as it stood prior to May 14, 1884, the rick. (C. PI.) 18 N. Y. Supp. 951; Peo- 
appellee had the right to file a brief at pie v. Purroy, (C. PI.) 18 N. Y. Supp. 
any time before the cause was taken 953; Cornelius v. Reiser, (C. PI.) 18 N. 
up for consideration. But whether an Y. Supp. 304; Nette v. New York El. 
objection be made in the brief of the R. Co., (C. PI. Gen. T.) 2 Misc. (N. Y.) 
appellee or not, if the record shows the 62; Dietlin v. Egan, (C. PI. Gen. T.) 2 
defect, this court is not required to Misc. (N. Y.) 52; Kelly v. Partridge, 
disregard it because the appellants' (C. PI.) 25 N. Y. Supp. 1143; Siegman 
counsel was not aware of it. The rule v. Keeler, (C. PI.) 25 N. Y. Supp. 1148; 
is that if there are points in the record Hand v, Rogers, (Supm. Ct. App. T.) 
not suggested by counsel nor perceived 16 Misc. (N. Y.) 364; Irvine v. F. H. 
by the court, such points will not be Palmer Mfg. Co., 3 N. Y. App. Div. 
considered on a petition for a rehear- 385. 

ing, but the court cannot refuse to North Carolina. ^ Weathersbee v, 

consider points of which it is made Farrar, 98 N. Car. 255. 

aware either by the suggestions of South Dakota, — Kirby v. Western 

counsel or by its own examination of Union Tel. Co., 4 S. Dak. 439. 

the record." Citing Martin v. Martin, Tennessee, ^- Hubbard v. Fravell, 80 

74 Ind. 207. Tenn. 304. 

1. Iowa, — Hasted v. Dodge, (Iowa United States. — Railway Register 

1S88) 39 N. W. Rep. 668; Hintrager v. Mfg. Co. v. North Hudson County R. 

Hennessy, 46 Iowa 600. Co., 26 Fed. Rep. 411. 

Kansas. — State v. Eaton, 6 Kan. «^ Kew York the rule stated in the 

App. 94. text prevails in the Court of Appeals. 

Kentucky. — Gray v. Dickinson, (Ky. Mount v. Mitchell, 32 N. Y. 702. And 

1890) 13 S. W. Rep. 209. it has been generally adopted by the 

Michigan, — Smith v. Walker, 57 other appellate courts of the state. 

Mich. 457. But the point which it is alleged that 

Minnesota. — Derby v. Gallup, 5 the court overlooked must be one Vi hich 

Minn. 119. presents a fair question for discussion, 

Missouri. — Supreme Court Rule 20, and it must appear that the court did 

116 Mo., Appendix, p. iv. not consider such point at all. Guidet 

Montana. — Columbia Min. Co. v. v. New York, 37 N. Y. Super. Ct. 124. 

Holter, I Mont. 429; Davis v, Clark. 2 Thus, in a case where the only issue 

Mont. 395. raised in regard to the use of a ma- 

35 Volume XVIII. 



BibMring of Appaali. REHEARING. eromidf. 

tion to rehear will also be granted when it clearly appears that 
the former decision resulted from overlooking material admissions 
in the pleadings of the prevailing party,* or that the court has 
failed to consider certain exceptions which were properly before 
it ; • but not where the sole ground alleged is that the appellate 
court has failed to pass on the sufficiency of the petitioner's plead- 
ings in the lower court.* 

Where All of the Facts Preeented Have in Fact Been Duly Considered by the 
court, and where the application presents no new facts, but 
simply reiterates the arguments made on the hearing, and is in 
effect an appeal to the court to review its decision on points and 
authorities already determined, a rehearing will be refused.^ 

chine was whether the part produced 8i6; Fisher v. Fair, (S. Car. 1891) 13 S. 

in court was in fact defective, and £. Rep. 853; Harris v. Bratton, (S. 

where the petition for a rehearing al- Car. 1S91) 13 S. £. Rep. 899; Hardin 

leged that the court had misconstrued u. Melton, 28 S. Car. 38; Williams v, 

the evidence as to the time when an Bennet, 35 S. Car. 598, (S. Car. 1891) 

inspector examined the machine, it 14 S. E. Rep. 288; Land, etc., Co. v. 

was held that this alleged misconcep- Williams, (S. Car. 1892) 15 S. £. Rep. 

tion by the court did not amount to the 453; Munro v. Long, (S. Car. 1892) 15 

oversight of a decisive question, and S. E. Rep. 553; Witte v. Weinberg, 40 

that the rule did not apply. Irvine v. S. Car. 545, (S. Car. 1893) 18 S. E. Rep. 

F. H. Palmer Mfg. Co., 3 N. Y, App. 886; Sloan v. Latimer, 41 S. Car. 217. 

Div. 385. In Utah an appeal may be reheard 

The fact that some of the judges where the court is convinced that it has 
rendering a decision have misconstrued failed to consider some material point 
a recent decision in a similar case is no in the case, or that it erred in its con- 
ground for a reargument, where it ap- elusions, or that some matter has been 
pears that the other judges who joined discovered which was unknown at the 
in the opinion construed the same de- time of the hearing, but not otherwise, 
cision correctly. Smith v. Miller, (N. Brown v. Pickard, 4 Utah 292; Venard 
Y. Super. Ct. Gen T.) 6 Abb. Pr. N. S. «/. Green, 4 Utah 67; In re McKnight, 
(N. Y.) 234. 4 Utah 237. 

In North Carolina it has been held FaUnre to Pass on Bejeotion of Evidenoe. 
that the weightiest considerations make — Failure of the appellate court to pass 
it the duty of the court to adhere to its upon the rejection of certain evidence 
decisions, and that no case ought to be by the trial court is no ground for a re- 
reversed upon a petition to rehear un- hearing where it appears that the facts 
less it was decided hastily, and some sought to be proven by the said evi- 
material point was overlooked, or some dence have been previously setup as a 
direct authority was not called to the defense, and determined adversely to 
attention of the court. Watson v. Dodd, the petitioner, in another suit involv- 
72 N. Car. 240, Devereux v. D.evereux, ing the same subject-matter. Main v, 
81 N. Car. 12; Ashe v. Gray, 90 N. Car. Field, 13 Ind. App. 401. 
137; Fry V. Currie, 103 N. Car. 203; Where It Appears that Snbetantial Joa- 
Emry v, Raleigh, etc., R. Co., 105 N, tioe Has Been Done a rehearing will not 
Car. 44, 45; Haywood v, Daves, 81 N. be granted on the ground that a recent 
Car. 8; Hudson v, Jordan, no N. Car. statute has been overlooked by the 
250. court and by both parties. Walsh v. 

In South Carolina a rehearing will be Brown, (Supm. Ct.) 24 N. Y. Sl Rep. 

refused unless it appears that the court 722. 

has overlooked some material fact or 1. Mason v. Pelletier, 80 N. Car. 66. 

important principle of law. Frost v, 2. Covar v. Sallat, 24 S. Car. 137. 

Weathersbee, 23 S. Car. 370; Claflin v. 8. Case v. Johnson, 70 Ind. 31. 

Iseman, 23 S. Car. 427; Columbia, etc., 4. Colorado. — Parks v. Wilcox, 6 

R. Co. t. Gibbes, 24 S. Car. 60; Clark Colo. 600. 

V. Wright, 24 S. Car. 526; State v. Florida. ^ Usin i', Stribling, 25 Fla, 

Scheper, (S. Car. 1891) la S. E. Rep. 435. 

86 Volume XVIH. 



toai I f ng of Appeal!. 



REHEARING. 



Orovndi. 



_ Ai^£^^£^an, — Nichols v. Marsh, 62 
■^'crlx- <^39; Seymour f/. Detroit Copper, 



etc. 
K 



Mi 



oiling Milis, 56 Mich. 117; 
- Raths, 45 Mich. 20; Taylor v. 
an, 24 Mich. 287. 
sota. — Derby i'. Gallup, 5 



43 



1?- 
poll 



Ho 



(^^ J^oints in Record Not Called to Court's Attention. — The 
mer^ fact that the court has overlooked a certain point presented 
by tiii^ record is not sufficient to authorize a rehearing, however, 
J^nl^ss it further appears that its attention was called to the point 
'^ q|ui^stion by the briefs or arguments of counsel.* 

with the Conrt as to the correctness of its 
former decision upon the law and facts 
as presented at the first hearing will be 
refused. Steele v. State, 33 Fla. 354; 
Pendleton v. Lord, 34 N. Y. Super. Ct. 
301. Thus a rehearing will not be 
Fish V. Heinlin, 8 Minn, granted on a petition which merely al- 
leges in a general form that the peti- 
Jlampshire. — Russell v. Dyer, tioner can satisfy the court upon rear- 
. 396. ' gument that its former decision was 

'York, — Atlantic, etc., Tel. Co. erroneous. Grigsby v. Minnehaha 
■.es, 39 N. Y. Super. Ct. 357; County, 7 S. Dak. 421. Nor will a re- 
V. Lintz, 9 Daly (N. Y.) 17. hearing be granted where the petition 

Carolina. — Hannon v. Griz- simply attacks the judgment of the ap- 
N. Car. 161; Moore v. Bea- pellate court upon the merits, alleging 
 xs N. Car. 558; Gay v. Grant, that its action in reversing judgment 
• Car. 478; Dupree v. Virginia for the defendant, on the ground that 
X Tis. Co., 93 N. Car. 237. the trial court improperly excluded 

*• — People f. Olson, 5 Utah 87; certain evidence, was erroneous. 

Welsh V. New York El. R. Co.. (C. PI.) 
16 N. Y. Supp. 174. 

Petition Directed Merely to Sympathy of 
Court. — A petition which fails to call 
the attention of the court to any point 
alleged to have been overlooked, and 
which is directed merely to the sym- 

In 



483; 



t>^^ti^«icau v\ House, 4 Utah 

' ^S? *^" ^°^^^' 4 Utah 484. 

''^0'«'^w»i»^. — Chadron Bank t/. An- 

^^r^o«, (Wyoming 1897) 49 Pac. Rep. 

^^*««V*r^ 5/«/«. — Williams v. U. S. 
L**^. « Pet. (U. S.) 96. 



^ 



0^ ^^bicago, etc., R. Co. r. Abilene pathy of the court, will be denied. 

L.^^**-Site Co., 42 Kan. 97, an appeal re Henderson, 88 Tenn. 531. 

^^s assigned by the Supreme Court to Bnle Extends to All Qaeitions Keceesar- 

vcv^ commission of appeals, and judg- ily Involyed. — Where the decision is 

ts^cat -vvas confirmed by the opinion of one which involves no serious injury 

^^ ^*^Qa mission. Thereafter one of the to general rights, and when the ques- 

P^'.^s, presenting a petition for a re- tions presented have been thoroughly 

ucariiigr^ alleged that the act creating considered, such decision must be 

. ^^iximission of appeals was uncon- deemed the settled law of the case, and 

sWiitional and void, and that by the a rehearing will be refused. And the 

^?*Snment of the appeal to said com- above rule extends not merely to ques* 

roission he had been deprived of his tions actually presented by counsel, 

! i ^^ ^^ heard before a duly consti- but to all questions existing in the 

JJite<i a.nd legal court. On considera- record and necessarily involved in 

"Ofi of th;s petition it appeared that the the decision. Headley v. Challiss, 15 

party \\^^ submitted briefs to the Su- Kan. 602. 

rV^^ Court, that a full oral argument Unless There Is Some Very Peculiar As- 

A ^^cn had before the commission, snmption or Oversight on the original 

* h ^**^' afterwards, on a motion for a hearing, by which the court and the 

rT^^''^' printed briefs had been filed parties have been misled, a rehearing 

^ •. ^ fall oral argument had been cannot be had on the same facts and 

maae t^ ^^ court upon all of the ques- legal controversy. Brown v. Brown, 

tioaa involved. It was held therefore 64 Mich. 82. 

Uiat tij^ party had been given as full a 1. Martin v. Martin, 74 Ind. 210; 

ncaringr by the Supreme Court as if the Jones v. Castor, 96 Ind. 307; Funk 

^**rt ***^ ^^^ originally heard by it; v. Rentchler, 134 Ind. 68; Murdock v, 

atiQ On this ground a rehearing was Gurley, 5 Rob. (La.) 467; Hutchins v. 

te^^sed. Kimmell, 31 Mich. 126; Wilcox v. To- 

^ Petition Whioh Merely Joint Issue ledo, etc., R. Co., 45 Mich. 280; Most 

87 Volume XVIII. 



B^aarliig of AppMOf. REHEARING. 6miidB. 

(3) Points Not Directly Referred to in Opinion, — A rehearing 
will not be granted on the sole ground that points presented on 
the argument are not referred to by the opinion of the court in 
express terms, since it does not necessarily follow that such points 
escaped the court's attention ; * and this is particularly true 
where the determination of other points, which are referred to- 
therein, necessarily involves the determination of the matters 
presented by the petition.* 

(4) What Decisions Are Controlling, — A rehearing will be 
granted where the decision is in conflict with a case previously 
decided by the highest court of the state, or where the latter 
court renders such an adverse decision pending the determination 
of the case at bar, or immediately after it has been decided ; • 

V. State, (Tex. Crim. App. 1898) 44 S. the arguments and illustrations used in, 

W. Rep. 832. on the conclusions reached by, the 

" If parlies appealing to this court original opinion. In such a case it 
do not take the trouble to call attention cannot be claimed that injustice has 
to the points upon which they rely, been done to the appellee by not spe- 
they cannot reasonably expect us cifically noticing his assignment of 
* * * to order rehearings for the cross-errors, and his petition for a re- 
purpose of considering them b^ piece- hearing based on this ground must be 
meal.'* Whitby z/. Rowell, 82 i^al. 635. refused. Thomas v. Simmons, 103 

1. Topeka v, Tuttle, 5 Kan. 425; Ind. 538. 
Thompson v, Jarvis, 40 Mich. 526; %, State v. Barnes, 25 Fla. 86; Eng- 

Weston V. Ketch um, 39 N. Y. Super, lish v. State, 31 Fla. 356; Meinhard v, 

Ct. 552; Ernst v. Estey Wire Works Youngblood, 37 S. Car. 231: Guidet zf. 

Co., (Supm. Ct. App. T.) 21 Misc. (N. New York, 37 N. Y. Super. Ct. 124. 
Y.) 68; Colonial City Traction Co. v, 8. In Kew York a case decided by the 

Kingston City R. Co.. 154 N. Y. 493; general term of the Supreme Court 

Dammert v, Osborn, (N. Y. 1894) 35 N. will be reheard where a decision of the 

E. Rep. 1088; Moore v. Beaman, 112 Court of Appeals adverse to that of the 

N. Car. 558; People z/. Olson, 5 Utah 87. genera! term is announced pending 

The fact that in a decision which the decision, Taylor v. Grant, 36 N. Y. 

sanctions a former decision the court Super. Ct. 259; Hayner v. American 

does not expressly notice and discuss Popular L. Ins. Co., 36 N. Y. Super, 

a supposed distinction between the two Ct. 211; or where it appears from a 

cases is no ground for a rehearing, decision of the Court of Appeals in 

Terry v. Wait, 56 N. Y. 91. dismissing an appeal from a judgment 

FailTure to Notice Errors Amigned on of the general term that the case ap- 

Cross-appeal. — If an appeal is affirmed pealed from was not properly before 

in favor of an appellee on the whole the general term, Produce Bank v. 

case he cannot have a rehearing on the Morton, 42 N. Y. Super. Ct. 124; or 

ground that his exceptions on a cross- where, immediately after the decision 

appeal have been overlooked. If an by the appellate term, the Court of A p- 

appellee seeks a reversal of the judg- peals or the appellate division decides 

ment, or other relief than that which the precise question adversely, Hand 

was granted him below, a cross-appeal v. Rogers, (Supm. Ct. App. T.) 16 

is proper; but where he merely seeks Misc. (N. Y.) 364; or where a decided 

an affirmance of the judgment, the fact case on which the decision is partly 

that he obtains it on grounds other based is subsequently reversed by the 

than those urged in his assignment of Court of Appeals, Freeman v. Fal- 

cross-errors does not eniitle him to a coner, 44 N. Y. Super. Ct. 579; or 

review of the judgment. Dudley v. where the general term, in rendering 

Goddard, (Ky. 1889) 12 S. W. Rep. 382. its decision, relies upon a certain au- 

And this is especially true where ma- thority, and there appears to be doubt 

terial questions presented by an assign- whether later authorities have been 

ment of cross-errors have been passed applied in deciding the case, Hackett 

upon either directly or infercntially by v. Stanley, 14 Daly (N. Y.) 210. 

38 Volume XVIII. 



fidiMring of AppmOi. REHEARING, Chronnds. 

but the decision of the higher court must be clearly in point,* 
and it must be shown that it is the last controlling decision.* 

AdTvna Dediion by Higher Court, bnt Without Opinion. — A party is not 
entitled to a rehearing of a judgment on appeal simply because 
since its rendition a higher court has rendered an adverse decision 
in another action involving the same facts, but without any writ- 
ten opinion or any assignment of its reasons.' 

(5) Enactment of Statute After Suhnissiofi of Cause, — The 
fact that a statute is enacted after the submission of a case on 
appeal is not sufficient to authorize a rehearing, unless such stat- 
ute directly affects the validity of the original judgment, or is 
inconsistent with the decision rendered on appeal.* 

c. Points Not Considered on Hearing — (i) In General, — 
As a general rule a rehearing will not be granted on grounds 

1. Coleman v. Livingston, 36 N. Y. besides, the decision of the Court of 
Super. Ct. 231; Hey wood V. Kingman, Appeals had actually been made, al- 
(Supm. Ct. Gen. T.) 29 Abb. N. Cas. though not known, at the time of the 
(N. Y.) 75; Trinity Chuich v. Higgins, argument of the appeal in this court. 
4 Robt, (N. Y.) 372. In the Hayner case, the court had be- 
A previous judgment in the same fore it the opinion of the Court of Ap- 
case made through a misapprehension peals in the other case, and was able 
of the record cannot be regarded as a to see the grounds of the decision; and 
controlling decision, and a rehearing they found them to cover all the ques- 
will not be granted on the ground that tions in the case in this court. In the 
the judgment is in conflict therewith, case before us we have not been fur- 
Doggett V. Jordan, 4 Fla. 121. nished with any opinion of the appel- 
Diota in Opiiiion of Higher Court. — A late court. Indeed, it is stated that no 
motion for leave to issue execution on opinion was filed or written. Nor are 
a judgment was granted by the special we apprised of the ground or grounds 
term, but the order granting leave was upon which that court has placed its 
reversed by the general term. The decision. It may have been upon a 
Court of Appeals, in dismissing an ap- purely technical ground, not disturbing 
peal from the decision ot the general the general law of the case, as deter- 
term, held that the decision of the mo- mined by this court, and not affecting 
tion rested entirely in the discretion of the real merits of the controversy, or it 
the court below, but on the basis of may even have been a reversal by the 
certain dicta in the opinion of the default of the party.    ]f rea- 
Court of Appeals the plaintiff moved sons had been assigned by the higher 
in the general term for a reargument. court, and they showed that the law of 
It was held that such dicta did not this court has been disturbed and re- 
bind the general term to grant a re- versed, we must and would regard 
hearing. Van Rensselaer v. Wright, the decision as authoritatively binding 
(Supm. Ct.) 12 N. Y. Supp. 330. upon us. But if no reasons are given, 
S. Dobyns v. Meyer, 20 Mo. App. this court would have a perfect right to 
66. adhere to its own opinions of the law, 
8. In Butterfield v. Radde, 40 N. Y. and the mere reversal by the appellate 
Super. Ct. 169, the court said: " In court would and could have no influ- 
Hayner v. American Popular L. Ins. ence upon it." 

Co., 36 N. Y. Super. Ct. 211, having 4. Dutcher v. Culver, 24 Minn. 584. 
followed and relied on a case which Where a petition for a rehearing has 
was reversed by the Court of Appeals, been granted, and, pending the rehear- 
this court granted a reargument on the ing of the case, a statute is passed in- 
ground that that decision should be re- validating the original decision, and 
garded as stare decisis. In that case, where judgment has not yet been ren- 
however, no judgment or order had dered on such decision, it will be re- 
been entered in this court, the decision versed. Iowa R. Land Co. v. Sac 
having been merely announced; and County, 39 Iowa 124. 

. 39 Volume XVIII. 



BdWMrlng of Appeftli. REHEARING. ermuidi. 

which were not urged or considered on the hearing,* and this 
rule will be departed from only in cases where the refusal of the 
application would work manifest injustice.* 

Xatton Proper to Bo Baifod on HMring or in Trial Court. — The reasons 
against granting a rehearing in such cases apply with particular 
force where the matters suggested are such as might have been 
raised on the original hearing in the appellate court,* or where 

1. Alabama. — Henderson v, Huey, JVashington, — Lybarger v. State, 2 

45 Ala. 275: Robinson v. Allison, 97 Wash. 552. 

Ala. 596. United States, — \5. S. v. Hall, 63 

California, — Grogan v. Ruckle, I Fed. Rep. 472. 

Cal. 193; Kellogg v, Cochran, 87 Cal. When the sufficiency of a showing in 

J92; San Francisco v. Pacific Bank, 89 favor of an infant's right to prosecute 

Cal. 23. as a poor person, without a next 

Illinois, — Marthaler v. Druiding, 58 friend, is not questioned by the ad- 
Ill. App. 336; West Chicago Park verse party on the hearing it cannot be 
Com*rs V, Kincade, 64 111. App. 113; urged as a ground for granting a re- 
Munger 27. Supancicz, 64 111 App. 661; hearing. Hood v, Pearson, 67 Ind. 
Hime v. Klasey, 9 111. App. 190. 368. 

Indiana. — Leffler v, Watson, 13 Ind. In Louisiana^ bv a rule of the Su- 

App. 176; Louisville, etc., Consol. R. preme Court, parties are obliged to file 

Co. c^. Hicks, II Ind. App. 588; Blough with the clerk a note of their points 

V, Parry, T44 Ind. 463; State z^. Halter, and authorities before the case is 

(Ind. 1898) 49 N. E. Rep. 7; Brooks-v. argued on appeal, and a rehearing will 

Harris, 42 Ind. 177; Thomas v, Mathis, not be granted on a point not furnished 

92 Ind. 560; Yates v. Mullen, 24 Ind. in compliance with this rule. Sorb^ 

277; Union School Tp. v. Crawfords- v. Merchants* Ins. Co.. 6 La. 185; 

ville First Nat. Bank, 102 Ind. 464; Mitchel v, Gervais, 2 Mart. N. S. (La.) 

Fleetwood v. Brown, 109 Ind. 567; 570. 

Scanlin v. Stewart, 138 Ind. 574. 2. Fuller v. Little, 61 111. 21; State v, 

Iowa, — Hintrager v. Hennessy, 46 Sexton, (S. Dak. 1898) 75 N. W. Rep. 

Iowa 600; Mann v. Sioux City, etc., 895. 

R. Co.. 46 Iowa 637. It Beets in the Biseretion of the Court 

Kansas. — Western News Co. v, Wil- upon a motion for a rehearing to exam- 

marth, 34 Kan. 254. ine into new questions, and upon them 

Louisiana, — McFarland v. White, 13 to modify or revise its decision; but it 

La. Ann. 394; Righior v. Phelps, i is purely a matter of discretion, and 

Rob. (La.) 330; Caldwell v. Western not of legal right, and the court will 

M. & F. Ins. Co., 19 La. 48; Garland seldom examine beyond the questions 

V. Holmes, i La. Ann. 404. presented on the original hearing. 

Michigan, — Ryerson v, Eldred, 18 Headley v. Challiss, 15 Kan. 602. 

Mich. 490. Manifest Errors in Beferee's Seport. — 



Nevada, — Beck v. Thompson, 22 In Groth v. Kersting, 23 Colo, 213, a 

Nev. 419. rehearing was granted where it ap- 

New York, — Central Park Baptist peared that there was a manifest error 

Church V, Patterson, (C. PI. Gen. T.) In a referee's report, although the 

12 Misc. (N. Y.) 636; People v. Thirty- court's attention was not called to this 

First Ward, 91 Hun (N. Y.) 206. error by the arguments or briefs prior 

North Carolina, — Weathersbee v, to the decision, and the point was first 

Farrar, 98 N. Car. 255. raised in the petition for a rehearing. 

Ohio, — Cincinnati v, Cameron, 33 8. Hein t/. Pungs, 9 App. Cas, (D. C.) 

Ohio St. 336. 492; Humphreys v. Allen, 100 HI. 511; 

South Carolina, — Knox v. South Emerson v. Opp, 9 Ind. App. 581; Lib- 
Carolina R. Co,, 5 S. Car. 73; Presnell erty Tp. Draining Assoc, v, Watkins, 
V, Garrison. 122 N. Car. 595. 72 Ind. 459; Johnson v. Jones. 79 Ind. 

South Dakota, — John A. Tolman Co. 141 ; Evansville v. Senhenn, 151 Ind. 42. 
V, Bowerman, 6 S. Dak. 206. Illastrations of Bole. — Refusal of the 

Utah, — Farrell v, Pingree, 5 Utah trial court to give an instruction, Payne 

530. V, Tread well, 16 Cal. 221; or error in 

40 Volume XVIII. 



B^hMiiag of Appeali. REHEARING. Oronnds. 

they ought to have been urged in the trial court before the appeal 
was taken. ^ 

Be^nlaiity of the Appeal. — The court will not consider whether the 
original judgment was appealable,* nor whether the appeal was 
properly perfected,' nor whether the parties have complied with 

overruling a motion in arrest of judg- pensable party to the action has been 
ment, Siberry v. State, 149 Ind. 684; or left out, even though the objection is 
an allegation that the evidence was in- raised for the first time on a petition 
sufficient to sustain a verdict against a for a rehearing; but the rule is other- 
defense of limitations, Cook v. Carroll wise when the party omitted is merely 
Land, etc., Co., (Tex. Civ. App. 1897) a necessary and not an indispensable 
39 S. W. Rep. 1006, will not be consid- party. Weightman v. Washington 
ered when raised for the first time by a Critic Co., 4 App. Cas. (D. C.) 136. 
petition for rehearing in the appellate 2. Uhler v. Ryer, (C. PI.) 4 N. Y. 
court Nor will a claim of right under Supp. 834. 

an Act of Congress be considered when 8. Kenner v. Their Creditors, 8 Mart, 

it is made for the first time on a motion N. S. (La.) 54. 

for a rehearing in the Court of Ap. That Judgment Appealed From Had Hot 

peals. Chappell v. Bradshaw, (Md. Been £ntered. — Where the return of 

1S88) 15 Atl. Rep. 762. the lower court states that " judgment 

In Danenhoffer v. State, 79 Ind. 75, was in due form entered," a rehearing 
the trial court refused to allow the de- cannot be had on the ground that the 
fendant to answer certain questions judgment appealed from had not been 
asked him by his attorney, and this re- entered when the appeal was taken, 
fasal was assigned as error, and the although the return does not set out 
appeal was heard on the general ques- the judgment in extenso^ since, al- 
tion as to whether or not the evidence though defective in this respect, it 
in question was admissible. There- might have been amended on proper 
after the defendant applied for a re- application, and the defect was waived 
hearing, and in bis petition, for the first by failure to amend on the hearing, 
time, raised the objection that the Gates v, Williams, (C. PI. Gen. T.) 10 
defendant, by omitting to state to the Misc. (N. Y.) 403. 
court the fact which he expected to That Eight to Appeal Was Waived. — 
prove by the answer of the witness. Objection to an appeal on the ground 
had failed to save the error of the court that the appellant has waived the error 
in the record in such a manner as to on which it was based cannot be raised 
make it available on appeal. It was for the first time in a petition for a re- 
held that this objection would have hearing. Herod v. State, 15 Ind. App. 
been good if raised on the hearing, but 648. 

that it furnished no ground for a re- That the Writ of Error Was Kot Issued 

hearing. until after a forthcoming bond had been 

1. Auley V. Osterman, 65 Wis. 118. taken and forfeited, and the execution 

OIutrationsofEale. — Questions as to returned satisfied, cannot be consid- 
ihe sufficiency of the pleadings in the ered by the court where it is raised for 
court below, Rikboff v. Brown's Rotary the first time in the petition for a re- 
Shuttle Sewing Mach. Co., 68 Ind. 388; hearing. Hatto v. Brooks, 33 Miss, 
or questions as to the sufficiency of the 575. 

service of process on minor defendants. Where the Kame ef a Keoeisary Appel- 
Micou V, Tallassee Bridge Co., 47 Ala. lee Is Omitted, by a mistake, from the 
652; or special defenses, such as the assignment of errors, the appeal may 
statute of limitations, Allen v. Buisson, be dismissed if the objection is raised 
35 La. Ann. 108; or questions as to the at the proper time and in the proper 
competency of witnesses, where no ex- manner; but where counsel appear for 
ception has been taken below to the all of the appellees, and the case is de- 
reading of their depositions, Birdsong cided on the merits, the objection can- 
V. Birdsong, 2 Head (Tenn.) 289, can- not subsequently be raised in a petition 
not be raised for the first time by a for a rehearing. Bennett v. Seibert, 10 
petition for a rehearing. Ind. App. 369. 

OmiMioii of Indispensable Party. — A re- Kotioe of the Appeal and Proof of Serv- 

hearing may be had where an indis- ioe thereof should be contained in the 

41 Volume XVIII. 



ftehearlng of AppMlf • 



REHEARING. 



Ctrouiids. 



the rules of practice prescribed by the court, when these ques- 
tions are presented for the first time by the petition for a 
rehearing.* 

(2) Grounds Not Involved in Any Issue Determined by Judge- 
ment. — The purpose of a rehearing is to correct a decision which 
is erroneous in regard to matters already considered, and not to 
raise new issues under new pleas ; and where the grounds pre- 
sented by the petition are not involved in any issue determined 
by the judgment the application will be refused.* 

(3) Grounds IncoTtsis tent with Position Assumed on Hearing. — 
When an action has been tried on a certain theory, a rehearing 
cannot be had on grounds inconsistent with that theory,* nor on 

abstract, but the mere fact that these time by a petition for a rehearing-, 

matters are omitted therefrom does not Wilson v. Lineberger, 90 N. Car. 180. 

constitute izrround for a rehearing, un- To Obviate Unfortuiate Baenlti of Jud^- 

less the objection is raised on the orig- mont. — A rehearing cannot be had for 

inal hearing. Hintrager v. Hennessy, the purpose of obviating certain un- 

46 Iowa 600. fortunate results which may follow 

Objections to the Gonzt'i Entertaining a under the terms of the original judg- 

Seoond Appeal must be raised by motion ment and opinion. Mann v. Poole, 40 

to dismiss, or at least at ths time when S. Car. i. 

the case is first heard on appeal, and 8. Oroonds Inooniietent with Theory on 

they cannot be raised for the first time Which Case Was Tried. — Jacksonville, 

in a petition for a rehearing. Ellis v. etc., R. Co. v. Peninsular Land, etc., 

Sisson, 96 111. 105. Co., 27 Fla. i, 157; McDonald v. Carson, 

1. Whitehead 2/. Tulane, 11 La. Ann. 95 N. Car. 377; Merriman v, Chicago, 
302. etc.. R. Co., 66 Fed. Rep. 663. 

In Day v. Burnham, (Ky. 1889) 12 S. Where on the hearing the plaintiff 

W. Rep. 148, a rehearing was applied has proceeded on the theory that a cer- 

for on the ground that the appeal had tain allegation in the petition is denied 

been prosecuted in the name of one by the defendant, he cannot have a re- 

of the alleged appellants without his hearing for the purpose of showing 

consent, but since it appeared that that the averment in question was not 

fourteen months elapsed between the denied by the adverse party, and must 

granting of the appeal and the submis- therefore be taken as admitted. Mc- 

sion of the case thereon, the court held Clanahan v. McKinley, 52 Iowa 222. 

that the party in question must be pre- Where it is urged on the original 

sumed to have received notice, and a hearing that all the credits for payment 

rehearing was refused. of interest on a note, allowed by the 

2. Stark v, Burke, 9 La. Ann. 344; court, are erroneous, it cannot be con- 
Kent V, Sibley, (C. PI.) 7 N. Y. Supp. tended on a petition for a rehearing 
801; Glover v, Farr, 23 S. Car. 489. that certain specific credits only should 

Where an Action for Divorce Is Prose- not have been allowed. Stotsenburg 

ented in the ordinary form, under the v. Fordice, 142 Ind. 490. 

Kansas statute, and the relief granted Where an Action of Kegligence has 

is in accordance with the provisions of been tried on the theory that a servant 

the code, the Supreme Court will not was guilty of contributory negligence, 

consider on a petition for a rehearing a petition for a rehearing will not be 

whether the District Court, as a court considered which is based on the 

of equity independent of statute, might grounds that the master was negligent, 

hav^e granted relief in the case and and that the servant assumed the 

compelled the husband to make some risk of employment. Louisville, etc., 

provision for his wife out of his estate. Consol. R. Co. v. Berry, 9 Ind. App. 63. 

Birdzell v, Birdzell, 35 Kan. 638. Pointi Which Have Been Waived on the 

In an Action upon an Acooont a claim Hearing, either expressly or by implica- 

to uncollected assets not embraced in tion. will not be considered upon a 

the account as sued upon cannot be petition for a rehea «ng. People v. 

considered when presented for the first Northey, 77 Cal. 618. Thus, where 

42 Volume XVIII. 



BthMring of Appeali. REHEAklMG. <lroiiii^. 

grounds which are contradictory of admissions made on the 
hearing,* nor for the purpose of admitting evidence which the 
petitioner has previously treated as inadmissible,* nor to consider 
certain evidence in a light different from that in which it was 
considered before.* 

d. Imperfect Presentation of Case on Hearing — (i) 

Important Point Not Argued, — A rehearing will not be granted 
on the ground that the petitioner has failed to argue an important 
point on the hearing. All points relied upon in support of the 
case must be presented by the briefs and arguments on appeal, 
and the practice of reserving certain points to be urged subse- 
quently, in the event of an adverse decision, is condemned by the 
courts.* The reasons for refusing a rehearing are stronger still 

counsel for both parties admit, on the 2. Where counsel refuses to accede to 
hearing, that the case presents only a proposal by the adverse party looking 
one point for the determination of the to the admission of certain evidence, 
court, a rehearing will not be granted under the belief that the evidence is 
to allow the defeated party to present adverse to his client's interests, but 
other points for decision. Gaines v. afterwards learns that the evidence in 
Williams, 146 111. 450. And where all question is favorable to his client, he 
issues of fact have been waived on the cannot have a rehearing for the pur- 
hearing, and the appeal has been tried pose of considering such evidence, 
upon questions of law only, a petition Cleland v. Gray, i Bibb (Ky.) 38. 
for a rehearing based upon questions 8. In Davis v, Gibson, 70 111. App. 
of fact will be refused. Atherton v, 273, evidence which was admissible for 
SanMateoCounty, 48Cal. 157; Cudahy the purpose of impeaching a certain 
V. Rhinehardt, (N. Y. 1892) 31 N. E. witness was offered as evidence gen- 
Rep. 444. erally, as a defense alone, and not 
1. Groimdf Contradiotory of Adminioiui. specifically for the purpose of impeach- 
— Ohio, etc., R. Co. v. Stein, 133 Ind. ment, and was rejected. Thereafter, 
243. the appellate court having, intimated 
Where certain facts had been admit- that the rejected evidence would have 
ted on the hearing a rehearing cannot been admissible if it had been offered 
be had on the ground that the admis- specifically for the purpose of impeach- 
sions in question were made only for ment, the appellant moved for a re- 
the purpose of argument, and were not hearing on that ground; but it was 
intended to be binding upon the peti- held that since the point was not made 
tioners. Smith v. St. Paul, 69 Minn, in the original brief of counsel it could 
281. not be raised on a rehearing. 

Fieti Admitted to Be in Issue. — Where 4. Andrews v. Mokelumne Hill Co., 

on the hearing a party has argued cer- 7 Cal. 330; Dougherty v. Henarie, 49 

tain facts at length, and has treated Cal. 686; Weil v. Nevitt, t8 Colo. 10; 

said facts as being within the issues, Ramsey v. Barbaro, 12 Smed. & M. 

he cannot afterwards petition for a re- (Miss.) 293; Hunt v. Church, 73 N. 

hearing on the ground that the facts in Y. 615; Rogers v. Laytin, 81 N. Y. 

question were not within the issues. 642. 

Emerson v. Opp. 9 Ind. App. 581. Additional Brief to Support Point Omit- 

The Validity of a Deeroe Having Been ted fnm Transoript. — Where a part of 

Adadtt^d on the hearing, it cannot be the record is omitted from the tran- 

denied on a petition for a rehearing, script, and an appellant files his brief 

Water Supply, etc., Co. v. Tenney, 24 in ignorance of this fact, and the tran- 

Colo 344. script is subsequently corrected by cer- 

^^hne the EqnitaUe Joriidietion of the tiorari, and judgment is rendered 

Cwrthas been admitted on the hear- against the appellant, a rehearing will 

j"g. a petition for a rehearing on the not be granted to enable the appellant 

ground that the court had no jurisdic- to file an additional brief in support of 

tion in equity must be refused. Garard the point omitted from the transcript. 

». Garard, 135 Ind. 15. Schrichte v. Stites, 127 Ind. 472. 

43 Volume XVIIL 



BehMring of Appealf. REHEARING. Orovadi. 

where through laches a party has totally failed to file briefs or 

argue the case on the hearing.* Nor is it a sufficient reason for 
a reargument that the case was submitted on the hearing instead 
of being argued orally ; • but the rule is otherwise where the court 
has decided a case against a party without affording him sufficient 
opportunity to answer the briefs of the adverse party.* 

Where Court IntiniatM that Argument Where Good ZzenieforDeliMiltlB CMTen. 
Ii Unneoenary. — In Derby v. Gallup, 5 — A rehearing may be granted eirea 
Minn. 119, a rehearing was denied though the petitioner did not appear on 
where the application was based upon the original hearing, if a good excuse 
the ground that counsel had failed to is given for the default; but even in 
argue an important point on the hear- such a case the application will be re- 
ing, supposing that the court did not fused if it is apparent that the orig^inal 
desire an argument thereon. But it judgment would not be altered on re- 
was said that If the court, on the argu- argument. Bishop v, Glassea, (Cal. 
ment of a particular point, were to in- 1886) 12 Pac. Rep. 258. 
timate or state to counsel that it was so In Waters v, Travis, 8 Johns. (N. Y.) 
well satisfied with the correctness of 566, judgment oy default had been ren« 
his view that no further argument was dered against the respondent, but the 
desired, and counsel abstained from court granted him a rehearin^^, since 
further argument thereon, and the case his application was supported by affi- 
was decided adversely on that particu- davits alleging that he was poor and 
lar point, a rehearing might perhaps unable to employ counsel, that no rule 
be granted. or order of the court had been served 

And in Martin z/. Cole, 38 Iowa 141, upon him, and that he had received no 

a rehearing was granted where the pe- notice of the proceedings on the part of 

tition alleged that counsel, from ex- the appellant. 

pressions found in the opinion of the In Purdie v. Jones, 32 Gratt. (Va.) 

court in prior cases, had been led into 827, a rehearing was granted upon a 

the belief (hat the main point involved petition which alleged that the decree 

in the case had been determined other- sought to be reviewed was made with- 

wise by the court, and that they under- out the knowledge of the petitioner, 

stood counsel for the adverse party to where an affidavit to the same effect 

admit this fact, and as a result of this made by a party who had been counsel 

misapprehension had failed to argue for all parties, was filed with the peti- 

the point in question. tion. 

Bight to Argument Waived by Delay. Behearing Ordered by Court of Its Own 

— In Marshall Silver Min. Co. v. Kirt- Motion. — Although a rehearing will 

ley, 12 Colo. 410, an appeal was not be granted upon the application of 

assigned to the commission of appeals, a party who has failed to hie or make 

and a date was set for oral argument, an argument when the cause was sub- 

Thereafterargument was several times mitted, the court of its own motion 

postponed by stipulation between the may order a rehearing under such ctr- 

parties, and after a long delay the Su- cumstances. Wachendorf v, Lancas- 

preme Court ordered the commission- ter, 61 Iowa 509. 

ers. who were atout to go out of office, 2. Weldon v. De Lisle, 8 N. Y. App. 

to report an opinion deciding the ap- Div. 610: 

peal. The opinion having been re- Two Appeals Argued Together. — Are- 
ported, a motion for a rehearing was hearing may be granted where two ap- 
made, but the court held that by long peals which are totally different in 
delay in making argument, and by fail- character have been set down and 
ure to excuse such delay, the parties argued together, and where it appears 
had waived their right to an oral argu- that the court may have been misled 
ment, and a rehearing was refused. by this method of procedure. Moore 

1. Bitting «r. Ten Eyck, 82 Ind. 421; v. S. C. Forsaith Mach. Co., 38 S. Car. 

Lawrence County v. Hall, 70 Ind. 469; 319. 

Wachendorf v. Lancaster, 61 Iowa 509. 8. Yiolationof Provision in Order of Sub* 

As to the effect of failure to file briefs mission. — Where a provision that the 

generally, see article Briefs, vol. 3, p. respondents shall have an extension of 

726- the regular time for answering the 

44 Volume XVIII. 



Btthttfiag of AppaalB. REHEARING. Grouids, 

(2) Surprise, Accident , or Mistake. — A party may have a 
rehearing on the ground of surprise where the adverse party has 
suggested new points to the court after submission of the case, 
or has violated an agreement as to the filing of evidence, and thus 
obtained a favorable decision by unfair means.* 

Petltloiier Mast Be Withoat Fault. — But accident or mistake will not 
be considered as ground for granting a petition unless it occurred 
entirely without fault on the part of the petitioner.* 

(3) Misconduct^ Absence , or Negligence of Counsel, — A rehear- 
ing cannot be had on account of the misconduct' or mistaken 
advice of counsel,* or his absence from the hearing,* or his failure 

briefs of the adverse party is inserted doned by the appellant, a rehearing wiU 

in the order of submission, and the not be granted on a petition which 

court decides the case adversely to the alleges that it was abandoned because 

respondent, without any brief on his the chancellor's notes of the evidence 

part, a rehearing will be granted with- below were not forthcoming, having 

out reference to the merits of the case; been lost, and that counsel therefore 

but if this provision as to extension of found it impossible to proceed with the 

lime does not appear in the record it case. Bennett z'. Bell, 10 Rich. Eq. (S. 

cannot be shown aliunde^ and the peti- Car.) 461. 

tion for rehearing will be denied. Pat- Controlling Faoti Admitted by Accident 

terson v. Ely, ig Cal. 28. or Mistake. — The Supreme Court will 

Immaterial Irregnlarity Waived — Be- not grant a rehearing on the ground 

Imring Befused. — In Rich v. State Nat. that controlling facts have been admit- 

Bank, 7 Neb. 201, there was an oral ted by accident or mistake on the trial 

agreement out of court between the of the cause in the court below. Mor- 

parties as to the time when the cause rill v. Taylor, 6 Neb. 236. 

should be heard, and as a result of this Mistake Due to Parties' Own Kegli- 

agreement the defendants failed to file genoe. — Where the contestants of a 

any brief within the regular time, will have entered a decree refusing it 

When the case was reached on the probate in the surrogate's court, with- 

docket the court refused to recognize out findings of fact, as required by the 

tills oral agreement, and judgment was code, they cannot properly argue a 

rendered without argument or brief by subsequent appeal by the proponents 

the defendant. Thereafter a motion on the merits, as though it were an ap- 

for leave to file a petition for a rehear- peal upon the facts, and if they adopt 

ing was refused, since it was apparent this irregular practice they cannot 

that, notwithstanding the irregular afterwards have a reargument on the 

practice on the hearing, the court had ground that findings of fact were nec- 

not overlooked any question of law or essary. /» r^ Patterson, (Supm. Ct.) 16 

fact in deciding the case. N. Y. Supp. 146. 

I. Champomier v, Washington, 2 La. 8, Baird v. George, 30 Mo. App. 505. 

Ann. 1014, Hankins v. Mutual Ben. L. 4. Brant v. Gallup, 117 111. 640. 

Ins. Co., 4 111. App. 130. 5. Conflicting Engagements in Different 

Facts Insnffioient to Constitute Sorpriie. Courts. — A rehearing will be denied 

— Where an appeal is dismissed on the when it is applied for on the ground 

ground that the order appealed from is that an engagement of counsel in an 

not appealable, a rehearing will not be inferior court prevented his attendance 

granted on the ground of surprise as to in the Supreme Court. In such a case 

this point, where it appears that the it is the duty of the counsel to attend 

question of appealability was raised in the higher court. Helena v, Brule, 15 

the printed brief of the adverse party, Mont. 429. 

that the decision of the court was made Absence Due to Negligence. — In King 

after a full hearing, and that the ques- v. Eraser, 23 S. Car. 543, counsel were 

tion T7as also argued on a motion to re- absent from the hearing because they 

settle the order dismissing the appeal, did not expect that the case would be 

Bush ET. Abrahams, 15 Daly (N.Y.) 168. reached. Thereafter they applied to 

1 Where an Appeal Has Been Aban- the court to have a time appointed for 

45 Volume XVIII. 



Behaarlng of AppMili. REHEARING. Gmudi. 

to present the case to the court with sufBcient clearness.* 

e. That Record Before Court on Appeal Was Errone- 
ous. — As a general rule a rehearing will not be granted on the 
ground that the transcript of the record made by the clerk of the 
trial court was erroneous,* or that the bill of exceptions did not 
contain all the evidence,' or that the record before the appellate 
court on the hearing was erroneous or defective in any other 
respect.* 

oral arg^ument. This application was Myers, 35 Kan. 554, a motion for a re- 
refused, but leave was g^ranted to file hearing; was made on the groand that 
printed arguments. An application for the bill of exceptions had been altered 
a rehearing made upon the ground that after it was allowed and signed by the 
the court erred in refusing to set a time trial judge, but since the evidence did 
for oral argument was refused, since it not show any such alteration the ap- 
appeared that no material fact or plication was refused, 
principle had been overlooked by the In Steinfeld v, Taylor, 51 III. App. 
court, and that the attorney's absence 399, the appellee filed an additional 
from ihe hearing was caused by his record, by stipulation with the appel- 
own negligence. lant. Thereafter the appellant moved 

1. Drucker c. Patterson, 2 Hilt. (N. for a rehearing of the appeal on the 
Y.) 135; Krom ?'. Levy,6Thomp. & C. ground that the additional record thus 

 (N. Y.) 253. filed was not as agreed upon by stipu- 

The fact that counsel omitted on the lation, and that it was an unwarranted 

hearing to call the court's attention 10 amendment of the bill of exceptions, 

the alleged fact that the defendant's ap- but it was held that the objection came 

peal had been waived and dismissed by too late, and that the application must 

the clerk does not authorize the grant- be refused. 

ing of a rehearing, especially where the 4. District of Columbia, — Otterback 

petition for a rehearing shows that con- v. Patch, 5 App. Cas. (D. C.) 69. 

irary statements, made by the adverse Illinois. — Millard v. Cooper, 10 111. 

party on the hearing, were suffered to App. 47; Boynton r. Champlin, 40 111. 

remain uncontradicted. Coleman v, 63. 

Keels, (S. Car. 1889) 9 S. E. Rep. 735. Indiana. — Phenix Ins. Co. rt. Lo- 

2. McPherson »'. Nelson, 44 III. 124. renz, 7 Ind. App. 266; Warner?'. Camp- 
In this case the transcript filed in the bell, 39 Ind. 409; Pittsburgh, etc., R. 
appellate court stated that the judge Co. v. Van Houten. 48 Ind. 90; Cole v. 
was requested to seal his bill of excep- Allen, 51 Ind. 122; State v. Terre 
tions ** containing the said several mai- Haute, etc., R. Co., 64 Ind. 297; Law- 
ters so produced, and on the evidence rence County v. Hall, 70 Ind. 469; 
given in the trial of said cause." The Porter v. Choen, 60 Ind. 338; Merrifield 
appellant moved for a rehearing on the r. Weston, 68 Ind. 70; Mansur v. 
ground that the original bill of excep- Churchman, 84 Ind. 573; Burgett r. 
tions contained the word " all " instead Bothwell, 86 Ind. 153; Robbins v. Ma- 
of •* on," but it was held that the mo- gee, 96 Ind. 174; State v. Dixon, 97 
tion must be denied. Ind. 125; Weatfield Bank v. Inman, 8 

Where a Defendant Has Been Convioted Ind. App. 239: Miller v, Evansville, 

of Theft in the trial court, and appeals, etc., R. Co., 143 Ind. 570; Smith z/. 

and the indictment as copied in the Goet?, 20 Ind. App. 142. 

transcript omits an essential averment, Iowa. — McDermott v, Iowa Falls, 

and the state's attorney, knowing this etc., R. Co., 85 Iowa 180; Barber v. 

fact, submits the cause to the court, Scott, 92 Iowa 52. 

and judgment is reversed, a rehearing Kansas, — State v. Coulter. 40 Kan. 

will not be granted on the ground of 673. 

diminution of the record. Garner v. Kentucky. — Gwinn v. Duvall, 9 Ky. 

State, 36 Tex. 693. L. Rep. 684; Christopher v. Searcy, 75 

8. Knoth V. Barclay, 8 Colo. 305; Ky. 171; Stanaford v. Parker, (Ky. 

Underwood v. Sample, 70 Ind. 446. 1891) 16 S. W. Rep. 268; Long v. Ker- 

Unwarranted Alteration or Amendment rigan, (Ky. 1891) 17 S. W. Rep. 441. 

of Bill of Exoeptions. — In Topeka v. Louisiana. — State v. Pierre, 49 La. 

40 Volume XVIII. 



Sahearing of Appeals. REHEARING, OroondB. 

BxMptions to Bold. — And while the court, of its own motion, may 
order a rehearing in a case where the record is manifestly and 
fatally defective,* the general rule above stated will not be disre- 
garded on the application of a party unless very special circum- 
stances are shown and a sufficient excuse is given for failure to 
correct the record before submission of the case.* 

Ann. 1159; Broom's Succession, 14 La. that such defect or error was ixnmate- 

Ann. 67. rial, and did not affect the decision of 

Maryland. — Colvin v, Warford, 18 the case. Godwin v. Hooper, 45 Ala. 

Md. 273. 613: Shipherd v, Cohu, (Super. Ct.) 5 

Minnesota. — Smith v. St. Paul, 69 N. Y. Supp. 187; Robinson Consol. 

Minn. 281. Min. Co. v. Craig, (Supm. Ct.) 4 N. Y. 

New York. — New York Cable Co. v. St. Rep. 478; Kessler v. Levy, (C. Pi. 

New York, 104 N. Y. I. Gen. T.) 12 Misc. (N. Y.) 116; Burl v. 

Tennessee. — Chesapeake, etc., R. Oneida Community, 138 N. Y. 649. 

Co. V. Hendricks, 88 Tenn. 710. 1. Linahan v. Barley, 124 Mo. 560. 

Texas, — Hilburn v. Harris, 2 Tex. 2. Allen v. Le Moyne, loi 111. 655; 

Civ. App. 395; Ross V. McGowen, 58 Fowler z/. Atkinson, 6 Minn. 578; Ayers, 

Tex. 603. etc., Co. v. Sundback, 5 S. Dak. 362; 

United States. — U. S. v. Adams, 9 Merchants' Nat. Bank v. McKinney, 6 

Wall. (U. S.) 554. S. Dak. 58. 

Where an appeal has been decided Cireamstanoefl Held Snffleient to Anthor- 

adversely to a receiver, on the ground iie Sehearing. — Where it is shown that 

that the copy of the record of the court a hearing has been had on an imperfect 

by which he was appointed did not record, that a large part of the matter 

show any decree dissolving the corpo- which was before the court below has 

ration, he cannot afterwards have a been omitted in the transcript certified 

rehearing to show that this record was to the Supreme Court, that there was 

defective, and that a decree dissolving no inexcusable laches or neglect in 

the corporation had in fact been passed, failing to examine and perfect the ttcr 

Taylor v. Columbian Ins. Co., 14 Allen ord before the hearing, and that the 

(Mass.) 353. omissions were material, a strong case 

Amendmentof the Beoord may perhaps for reargument is presented. Ambler 

be allowed after a rehearing is granted, v. Whipple, 23 Wall. (U. S.) 278. 

bat a rehearing will not be allowed for In Pearl v. Wellman, 9 111. 395, 

the sole purpose of amending the rec- judgment for the plaintiff was reversed 

ord. State v. Eaton. 6 Kan. App. 94. on appeal because a plea of payment 

Bill of Ezceptionfl Omitted from Beoord. was unanswered on the record, but a 

— A rehearing will not be granted on rehearing was afterwards granted, 

the ground that the bill of exceptions since it was shown that the plaintiff's 

was omitted from the record. Bedford replication to the plea had been filed in 

2'. Neal, 143 Ind. 425. the court below, but inadvertently 

I^ve to Correct Abstract Due to Siek- omitted from the record on appeal. 

MM. — Where a respondent has sub- In Munger v. Jacobson, 100 111. 468, 

"fitted his case on a defective abstract, on a motion for a rehearing the parties 

without objection, he cannot after- agreed by stipulation to incorporate the 

wards have a rehearing on a corrected record of a different branch of the case 

abstract, on the ground that he was in the record as previously used on the 

prevented by sickness from submitting hearing, and as different questions 

a corrected abstract before the deter- were presented by the record as thus 

niinaiion of the case. And this is es- amended a rehearing was granted, 

pecially true where the party is entitled In Krakowski v. North New York 

to a new trial, and the decision of the Co-operative Bldg., etc., Assoc, (C. 

appeal does not finally settle the merits PI.) 24 N. Y. Supp. 1138, a rehearing 

of the case. Harrison v. Chicago, etc., was granted since it appeared that cer- 

^- Co., 6 S. Dak. 572. tain papers received in evidence in the 

lau&aterial Error Hot Affecting I>eoision. trial court and on which both parties 

■7 A rehearing will not be granted on to the appeal based their rights had 

Joe ground that the record was defect- not been returned in the record sent to 

ivc or erroneous, when it is apparent the appellate court. 

47 Volume XVIII. 



BehMring «r AppMli. REHEARING. exMnda. 

/. Importance of Question Involved. — Where a question 

of great importance is involved in the determination of a case and 
it appears to have been decided without due consideration the 
court may grant a reargument ; * and the same course is some- 
times pursued where the decision in the case at bar is likely to 
affect the result in other cases which are pending at the same 
time, and which involve the same question.* 

Cmm Involving Conitltntional Qnettioni may be reargued when the 
justices hearing the argument are divided in opinion, and for that 
reason do not deliver any judgment.* But when a question con- 
cerning the constitutionality of a law has been waived by failure 
to raise it on the argument, a rehearing for the purpose of pre- 

In Stafford v, Perker« Dall. (Tex.) with considerable scrutiny. Itisvolu- 

380, a reargument was granted because minous and confused. The assign- 

the record was so vague and uncertain ments of error in several important re- 

that the Supreme Court could neither spects are indefinite and scarcely 

affirm nor reverse the judgment nor intelligible, as we see them. We are 

render the judgment which should unable so far to interpret them satis- 

have been rendered below. factorily. The elaborate brief of the 

In Allerding v. Cross, 15 Wis. 530, appellant has reference to only a part 

the case was tried before a jury, and of the errors assigned, and the counsel 

after argument, the jury, by consent of present did little more than read it. 

the parties, found a formal verdict for The case was not argued at all for the 

the plaintiff, upon which judgment appellee. It seems to be of consider- 

was to be entered for the plaintiff if the able importance, and merits to be thor- 

court should be of the opinion that it oughly argued. Indeed, we think it 

should stand; otherwise the verdict due to the parties to direct that it be 

was to be set aside and judgment en- reargued for the appellant, and argued 

tered for the defendants for costs. The also for the appellee, at the next term. 

plaintiff moved for judgment; the To that end the case must be contia- 

court denied the motion and gave ued.*' 

judgment for the defendants, to which Additional Beasons GtoneraUy Essential, 

the plaintiff excepted generally. On — In Derby v. Gallup, 5 Minn. 119, it 

appeal the judgment was affirmed for was said that a rehearing would be 

the reason that the exceptions were not granted in a case where great public 

taken in such a manner as to present interests were involved, and where it 

the questions discussed by counsel, but appeared that the case had not beea 

a rehearing was afterwards granted to fully argued, but even in such a case 

allow the appellant to apply to the strong additional reasons must be 

lower court to amend the record so as urged to show that the court has erred 

to show the facts properly. in its rulings. And see Bradley v. 

1, In Morrow v. Weed, 4 Iowa 77, a Gamelle, 7 Minn. 331. 

rehearing was granted since it appeared In the United States Giroiut Court of 

that the questions involved were very Appeals rehearings will not be granted 

important, that the pressure of business on the ground that the case is of great 

had rendered it necessary to make the importance unless there is also a sug- 

opinion of the court too brief, not gestion that some controlling author- 

entering into a detailed exposition of ity has been overlooked; and this is 

the questions involved with sufficient especially true where the decision is 

clearness, that rules were announced subject to review by the Supreme 

but their application left to the mind of Court. Camfield v. U. S., 67 Fed. 

the reader, and that counsel appeared Rep. 17. 

to have misapprehended the reasoning 2. Kirby v. Western Union Tel. Co., 

of the court. 4 S. Dak. 439. But see Butler v. 

In Lenoir v. Valley River Min. Co., Walker, 80 111. 345. 

104 N. Car. 490, the court said: " We 8. Briscoe v. Commonwealth's Bank^ 

have examined the record in this case 8 Pet. (U. S.) 118. 

48 Volume XVIIL 



MMffftg of AppMii. REHEARING. CMttftdi. 

senting the same question, and thereby ousting the court of its 
jurisdiction, will not be granted.^ 
g. DBClStON RENDERED UV DIVIDED COURT. — Where the 

judges of the appellate court are divided In opinion a reargunlent 
of the case is usually allowed, especially in cases where the judg- 
ment is affirmed by operation of law, and the decision is final in 
its nature, and other methods of review are not open to the peti- 
tioner, or where the division of the court results from the absence 
of one or more of the judges.' But where a Case has been twice 
deliberately heard and considered, and the same result has been 
reached at both hearings, and the judgment has been entered 
of record, a rehearing will not be granted merely because some 
members of the court have since changed their opinion on the 
law of the case.' 

1. In re Pittsburgh, etc., R. Co., 147 oiiSly reversed, and that the decision 

lad. 697* Haas v. Evansville, (Ind. has since been vacated^ Case v, Ho£f- 

180S) 51 N. E. Rep. 105. man, 100 Wis. 314. 

ftU08tioii U to CoiuUtatioiiality Itot £s- When a Jnd^meat Is Kot lihal a rear- 

M&tial. — A rehearing will not be gument will be refused although it was 

granted where the question as to the rendered \>y a divided court. Texasi 

constituUotiality of the laW is not es- etc., R. Co. v. Gentry, g7 Fed. Rep. 

sentlal to the determination of the 422. 

case, and does not affect the decision Thus in an action to recover real 

of the court. Vallier v, Brakke, 7 S. property an appellant is not entitled to 

Dale. 551. a reargument of the judgment on ap- 

8. CoIIey V, Duncan, 47 Ca. 668; peal where the statute prorides for a 

Summerbell v, Summefbelli 36 K.J. second trial on compliance with certain 

£q. 203; Burrows v. Guest, 4 Utah conditions. Great Northern R. Co. v^ 

I2t. And see iti gertetal article DiVi- Stewart, 65 Minn. 514. 

sioN opOpinioK, Vol. 7, p. 44. In Haw York. — In People v. Now 

^udgdieAt Aflinndd by OpeMitidki of Law. Vork^ 25 Wend. (N. V.) 252, it was held 

— Id lotwt the code provides that when that the court of errors would not grant 

the court is equally divided Ih opinion a rehearing after final judgment on the 

there shall be a rearguitient if it ap- merits of the case had been pronounced, 

pears that one of the judges was absent drawn tip, settled, and entered of rec- 

but not disqualified, but if he Was dis-< ord, although the court was equally 

qualified the judgment shall stand divided, and the judgment of the court 

affirmed. In a cade where one of the below was affirmea by operation of 

judges Was disqualified, &hd the two law. 

judges who heard the case differed in And in Mason v. Jones, 3 N. Y. 375, 

opinion, it Was claimed by the appellee it was held that where the judffcs of 

iBat his right to an affirmance of the the Court of Appeals in consultation 

judgment was fixed by law, indepetid- were equally divided in opinion, a 

ent of the decision of the aopellate judgment of affirmance would be ren- 

court, and therefore that a renearing dered in conformity with the former 

cDuld not b(i ordered, but the court held practice of the court of errors, and that 

that a judgment thus affirmed by op6r- when this judgment of affirmance has 

ation of law wad as much subject to been pronounced in open court with no 

rearmament as any other judgment, public expression of dissent a rehearing 

Zeigler v. Vance, 3 l6wa 528. will not be granted. 

It&dghiAnt of Lower Cotu^ Eevened by In the Federal Courts. — A rehearing 

Ut&ke. — Where a rule of the Su- will not be granted on the ground that 

pfeme Court provides that the iudg- the case was decided by a divided 

ment of the court below shall be court unless important constitutional 

aArttied if the judges are equally questions are involved. Shreveport p. 

divided in opinion, a rehearing Will Holmes, 125 U. S. 694. And see 

be granted if it appears that in such a Brown v, Aspden^ 14 How. (U .S.) 2fi. 

«*c the judgment has been crrone- t. Blatchford v, Newberry, 100 111. 

18 Encyc. PI. & Pr. — 4 4d Volume XVIII. 



BahMuring of Appeals. REHEARING. Oronndi. 

h. Probable Alteration of Decision on Reargument 
Before Court Differently Constituted — (i) Change in 

Membership of Court. — That a change in the membership of the 
court is about to take place, or has already occurred, is not in 
itself sufficient reason for granting a rehearing.* 

(2) Death of Judge. — Nor does the death of one of the judges 
who heard the argument, occurring before the decision was ren- 
dered, necessitate a review thereof, where the surviving judges 
constitute a majority of the court, and are agreed in opinion.* 

(3) Court Not Legally Constituted. — A petition for a rehearing 
does not lie on the ground that the court which rendered the- 
decision was not legally constituted.' 

I. Death of a Party to the Action. — The death of a party 
to an action, after submission but before decision of the case on 
appeal, cannot be urged as a ground for reargument.** 

484. And see Newberry v. Blatchford, lowed in a case which involves this 

106 III. 584. question unless there is a palpable 

1. Peoples V. Evening News Assoc, error in the first decree. Devereux i^. 

51 Mich. II: Woodbury v. Dorman, 15 Devereux, 81 N. Car. 12. 

Minn. 341; Ayerr. Stewart, 16 Minn. 89. 2. State v. Sioux Falls Brewing Co., 

A reargument will not be ordered for 5 S. Dak. 360; Aultman v. Utsey, 35 S. 

the mere reason that the decision of Car. 596. 

one general terra does not meet the ap- 3. Williams v. Benet, 35 S. Car. 598, 

proval of the judges composing a sec- (S. Car. 1891) 14 S. E. Rep. 288; Hub- 

ond general term. Steams v. Hem- bard v, Fravell, 80 Tenn. 304. 

mens, (C. PI.) 3 N. Y. Supp. 16. Where the legal right of a certain 

Thus in Newell v. Wheeler, 4 Robt. member of the court to sit at the hear- 

(N. Y.) 190, where one general term ing is not disputed on the original 

was requested to review a decision by hearing the question will not be con- 

a previous general term the application sidered on a petition for a rehearing, 

was refused and the court said: '* Such People v. Tidwell, 5 Utah 88. 

an application is rather a novel experi- Belationahip of Judge to Attorney. — In 

ment in correcting judicial errors by Maclean ?/. Scripps, 52 Mich. 215, a son 

bringing the opinion of one general of the judge who wrote the opinion be- 

term before another differently consti- longed to a firm who were the attor- 

tuted for the purpose of criticising the neys of record for one of the parties 

soundness of its views upon the facts when the suit was brought, but since it 

which the evidence before it tended to appeared that the firm did not manage 

establish. Such a mode of review, the case, and did not appear in the ap- 

whatever deference may be paid or felt pellate court, a petition for a rehearing 

for the action of the former general alleging the disqualification of the 

term, would be very apt to lead to dis- judge on account of this relationship 

respectful comments upon the conduct was refused. 

of the court, and at least to reflections 4. Moore v. Taylor, 81 Md. 644; Ault- 

on the diligence with which the case man v. Utsey, (S. Car. 1891) 14 S. E. 

has been examined on the first occa- Rep. 289. 

sion. For this reason, it seems to me trregnlarity Waived Where Babetantial 
both just and proper that the moving JoBtice Ib Done. — Where a party dies 
party should secure, from the prior pending an appeal, a hearing had be- 
court, some acknowledgment of over- fore his administrator has been substi- 
sight or error, in order to make such a tuted is irregular since the code pro- 
proceeding very decorous." vides that in such cases the appeal 

In Conslxaing the Intention of a Testa- cannot be heard until after substitution, 

tor it is very probable that one court but a rehearing will not be granted on 

will differ from another since it is the ground of this irregularity where it 

largely a matter of opinion, and there- appears that the hearing has been 

fore a rehearing should seldom be al- thorough and exhaustive, and that 

50 Volume XVIII, 



Bahflftring of Appeals. 



REHEARING, 



By Whom Kay Be Had. 



/ Newly Discovered Evidence. — In the absence of statute 

providing therefor cases on appeal will not be reheard on the 
ground of newly discovered evidence.^ 

k. Judgment Obtained by Fraud. — Where it is sought to 

impeach a judgment on the ground of fraud an independent 
action setting up the fraud is necessary and a petition for a 
rehearing does not lie.* 

3. By Whom Behearing May Be Had. — strangen to the Soit cannot 
have a rehearing where their application is based on facts 
extraneous to the record,* and in all cases it must appear that 
the party by whom application is made is a person whose inter- 
ests are affected by the judgment.'* 



sabstantial justice has been done. 
Blake v. Griswold, 104 N. Y. 613. 

1. Zuver V, Lyons, 40 Iowa 510; 
Breaax v, Negrotto, 43 La. Ann. 426; 
Cutler V. The Steamship Columbia, i 
Oregon loi; Nessley v, Ladd, 30 Ore- 



Car. 246. See article Bills to Im- 
peach Decrees and Judgments, vol. 3, 
p. 607. 

3. State V. Cowen, (Md. 1897) 36 Atl. 
Rep. 434. 

4. McCreery v. Ghormley, 9 N. Y. 



gon 564; McMeen v. Com., (Pa. 1887) App. Div. 221. In this case an appeal 



10 Atl. Rep. 785; Ex p. Dunovant. 16 
S. Car. 299; Mckenzie v. Sifford, 52 S. 
Car. 394; International, etc., R. Co. v. 
Anderson County, 59 Tex. 654; U. S. 
V. Maxwell Land-Grant Case, 122 U. 
S. 365; Flower v. Lloyd, 46 L. J. Ch. 
838 6 Ch. D. 297, 35 L. T. N. S. 454, 
25 W. R. 793. 

In HiehigaB an Appeal Kay Be Beheard 
on the ground of newly discovered evi- 
dence. Thompson v. Jarvis, 40 Mich. 
526. 

But where the statement of the pro- 
posed new evidence is very vague, and 
indicates nothing more than cumula- 
tive testimony upon a subject on which 
several witnesses have been examined, 
and where it appears that the evidence 
might have been obtained in time for 



was taken from an order granting in< 
spection and discovery of books and 
papers belonging to several defend- 
ants, and on the hearing of the appeal 
it was urged that the documents in 
question contained incriminating evi- 
dence; but the court held that since 
the alleged crime was barred as to all 
the defendants by the statute of limita- 
tion, the production of the documents 
could not prejudice the defendants, 
and the order of the trial court was 
therefore sustained. Thereafter one 
of the defendants petitioned for a re- 
hearing, admitting that as to his own 
case the judgment of the court was 
correct, but alleging that it was erro- 
neous as to the other defendants, in 
that the crime was not barred in their 



the hearing by the exercise of reason- case by the statute. It was held, how- 



able diligence, a rehearing will be re- 
fused. Case V. Case, 26 Mich. 484. 

In Vorth Carolina rehearings on the 
ground of newly discovered evidence 
are authorized by Rule 12 of the Su- 
preme Court. Weathersbee v. Farrar, 
98 N. Car. 255. 

2. So held in a case where the de- 
fendant claimed that there was an 
agreement between himself and the 
plaintiff whereby it was understood 
that the defendant would not resist the 
action but would suffer judgment to be 
entered for a certain amount, that 
judgment was entered for an amount 



ever, . that the petitioner could not 
have a rehearing, as the judgment did 
not prejudice his own rights. 

Where the Attomey-Oeneral Appears on 
Behalf of the People he is not a party tu 
the suit nor is he properly an inter- 
vener. His position is rather that of 
atnicus curia^ and he cannot petition 
for a rehearing. Nor can an inter- 
vener have a rehearing in a case where 
the decision does not affect his inter- 
ests. Parker V. State, 133 Ind. 178. 

Applioation of Amiena CnrisB. — In 
Louisiana a rehearing may be had on 
the suggestion of an amicus curia; 



inexcessof that agreed upon, and that bur in such case the application does 

it would be a fraud to allow the not delay the finality of the judgment, 

plaintiff to enforce judgment for said Life Assoc, of America v. Hall, 33 La, 

amount. Grant v. Edwards, 88 N. Ann. 49. 

51 Volume XVIU. 



BehatfiAg of AppeaU. REHEARING. Time of Kftkliig AppUeatloiL. 

A Potltlon by aa AppoUeo, who seeks thereby to open a judgment 
as against a co-appellee, will not be entertained.* 

4. To Whom Application Should Be Hade. — Application for a 
rehearing should be made to the court in which the appeal was 
decided ; • and where such court is divided into several depart- 
ments, good practice further requires that the petition be filed in 
the same department or division where the original hearing was 
had.» 

After Appeal to Higher Oourt. — The court which rendered the 
decision has no power to grant a rehearing after the case has 
been removed to a higher court, or after its judgment has been 
affirmed on appeal.* Nor can a higher court order an inferior 
court of appellate jurisdiction to grant a rehearing; but the 
judgment of the higher court may be made without prejudice to 
a subsequent application in the lower court.* 

6. Time of Making Application — ^. Before End of Term. — 

At Common Law, as a general rule, the petition must be filed before 
the end of the term at which the case is decided, and in most 
jurisdictions a failure to make the application within this period 
is fatal, exceptions to the rule not being recognized by the 
courts.* In a few of the states, however, applications made after 

1. Jamifton V. Barelli, 20 La. Ann. plying to one gfencral term for a re- 

453. hearing in a case decided by a pretrious 

Si Matter of Livingston, (Ct. App.) general term has been condemned, and 

32 How. Pr. (N. Y.) 20. petitions for such rehearing have been 

8. In Kotr ftampthlte it has been held refused. If the question at issue is 

that where a case is decided at the law one of law the proper remedy is by ap- 

term 11 motion for a rehearing therein peal. McGarry v. Board of Super vi* 

in regard to a question of law must sors, t Sweeny (N. Y.) 217; Taylor v, 

also be made at the law term. Bell v. Grant, 36 N. Y. Super. Ct. 259; Newell 

Lamprey, 58 N. H. 124; Plaisted v. v. Wheeler, 4 Robt. (N. Y.) I94. 

Holmes, 58 N. H. 619. I& Ohio, where the decision was ren- 

But where a decision is rendered by dered by the court in bank, it was held 

a single judge, and questions of law that a rehearing could only be allowed 

are reserved for determination by the in open court in bank. Carlisle v. Mc- 

whole court, the question as to whether Donald, 7 Ohio (pt. i.) 267. 

there shill be a rehearing in respect to 4. In re Citizens' Water- Works Co., 

the facts must be determined at the (Supm. Ct.) 15 N. Y. Supp. 579; Jung 

trial term by the judge who tried the v. Keuffel, (C. PI. Gen. T.) 12 Misc. (N. 

case. Rayncs v. Raynes, 54 N. H. 201. Y.] 8g. 

In Kew York It was held that one di- 6. Matter of Ingraham, 64 N. V. 310. 

vision of the court of appeals would In Jennings v. Parr, 51 S. Car. rgi, a 

not grant a rehearing in a case decided petition for a rehearing was refused on 

by another division; especially where the ground that it raised questions not 

the judgment complained of was not considered by the Supreme Court on 

final, a new trial below being ordered, the hearing, but the order dismissing 

People V. Ballard, 136 N. Y. 639. the petition was made without preju- 

And while it was held in floUes v. dice to the right of the petitioner to 

Duff, 56 Barb. (N. Y.) 567, that one have the questions passed upon by the 

special term or one general term of the circuit court. 

supreme court might rehear cases de- 6. Dakota, — Roberts v, Haggart, 4 

cided by a previous special or general Dak. 210. 

term, it was also said that this power Florida. — Horn v. Gartmatt, t Fla. 

should very rarely be exercised. 230. 

And in later cases the practice of ap* G^or^ia, — Grant v. State, 100 Ga. 67. 

(W Volume XVIIL 



MMrilf «f Avptab. REHEARING. Time of KaUag Apf^Uoatiea. 

the end of the term will be considered where a rehearing is the 
only remedy available, and irremediable injury would otherwise 
result,* or where circumstances over which the petitioner has no 
control havQ prevented an application within the required period.* 

*, BEFORE Case Has Been Remanded. — After an appeal 
has been decided, and the case has been remanded, the appellate 
court has no jurisdiction to grant a rehearing." 

Illinois. — People v. Pearson, 4 111. judgments in question, and not for re- 

4fi6; l^ampsett z^. Whitney, 4 III. 170; hearingsin the proper sense of the term. 

Qellsyille Sav. B^nk v. Rei», 89 III. 1. Roberts v. Edmundion, 4 Smed. 

App. 62a; Delahay v. McConoel, 5 HI. & M. (Miss.) 730. 

157- 3. Pearl v. Wellman, 9 III. 395; Selby 

KaHsu4, — J. M. W, Jones Station- v. Hutchinson, 10 111. 261. 

ery, etc., Co. v, Hentig, 31 Kan. 317. 8. California. — Grogan v. Ruckle, i 

Kentucky, — Robertson v* Given, 6 Cal. 193; Mateer v. Brown, i Cal. 231; 

K/. L. R^p, 214. Durkee v. Garvey, 84 Cal. 500. 

Louisiana. -^ Brooks v, Dolard, Mc- Michigan, — Ryerson t/. Eldred, 18 

Gloiq (La.) «79- Mich. 490. 

Mississippi. — Foy v, Foy, 25 Misi. Minnesola. ~^ Caldwell v. Brugger- 

207. man, 8 Minn. 286; Rud v. Pope County, 

MisscMri. — Gratiot v. Missouri Pac. 66 Minn. 358. 

R, Co., 116 Mo, 450. Montana, •■— Columbia Min. Co. v. 

Tennessee, — Haywood v, M^trsh, 6 Holter, i Mont. 429. 

Yerg. (Tenn.) 69, New Jersey, — King v, Ruckman, 22 

TVjco^. — Chambers v. Hodges, 23 N. J. Eq. 551. 

Tc«. 104; Burr », Lewis, 6 Tex. 76. New York, ^- Mechanics', etc.. Bank 

Virginia. — Towner ». Lane, 9 Leigh v. Dakin, 54 N. V. 681. 

(Va.) 262. South Carolina, — Sullivan v. Speights, 

West Virginia, — Hall v, Virginia 14 S. Car. 35S; Exp, Dial, 14 S. Car. 

Bank, 15 V/. Va. 323. 584; Whaley v, Charleston Bank, 5 S. 

Wisconsin. — Oakley v, Hibbard, 2 Car. 262. 

Pin. (Wi9.) %\. Wisconsin, — Ogilvie v. Richardson, 

Umted States, — Lewisburg Bank v. 14 Wis. 157. 

Sheflfey, 140 U. S. 445; Hudson v. United States. — Perk v. Sanderson, 

Gu^ptier, 7 Cranch (U. S.) i; Brooks i8 How. (LJ. S.) 42; Sibbald v. U. S.. 

V. Burlington, etc.. R. Co., loa U. S. 12 Pel. (U. 8.) 488; Browder v, 

107: Buihqell v, Crooke Min., etc.. M'Arthur, 7 Wheat. (U. S.) 58. 

Co., 150 U. S. 82. Appearanee in the Lower Court, and 

VaImi tko.Conrl IMreots a tupensioii of participation in a bearing held therein, 

the Judgment by an order made at the after the case has been remanded by 

same terra at which the judgment is the supreme court, is a waiver of any 

reodfr^d. a petition filed after the end rif^ht which a party might have to 

of the term is too late; nor does the move for a rehearing in the supreme 

filing of a motion for leave to present a court. Bentley v. Frale^, i Dak. 38. 

petition fpr a rehearing thus suspend Bemittitu Issued but Hot Tot Filed Bo- 

tbe jadgnsent. Ashley v. Hyde, 6 low. — In South Carolina the power of 

Ark, qs. the supreme court to grant a reheating 

Xko]4gislatiiroCaBXftOtConlBr Authority ceases when the remittitur is issued, 

upon the Gourt to rehear judgments ren- and it makes no difference whether or 

derdd at a previous term. Griffin v. not it has been filed below. Ex p, 

Cunningham, ao Gratt. (Va.) 31. Dunovani, 16 S, Car. 299. 

Tbus if) Hall V. Virginia Bank, 15 But in New York the issuance of the 

W. Va 323, although an act bad been remittitur does not bar a rehearing as 

P^sh4 by the legislature authorizing long as it has not been filed below, and 

^ rehearing of cases decided at a pre« at any time before it is so filed the ap- 

^ioas terro, it was held that the enact- pellate court, on a proper case made, 

roent waf permissive, and not manda- will order the filing of the remittitur to 

^fy. 4q4 that it provided simply for be stayed. Cushman v. Hadfield, (Ct. 

^ correction of clerical errors in the App.) 15 Abb. Pr. N. S. (N. Y.) 109. 

53 Volume XVIH. 



Beliearing of Appeals. REHEARING. Time of Kaldng AppUoation. 

c. Time Prescribed by Statute. — In many jurisdictions 
the time within which petitions may be filed is prescribed by 
statutes or court rules.* 

After the Time Thai Limited Hae Expired a petition cannot be filed as 
of course, but a motion for leave to file it is essential. If such 
motion alleges a sufficient excuse for failure to comply with the 
rule, leave may be granted, but as a general rule the statutory 
period will not be extended.* 

But after it has been filed a rehear- instate the appeal. Such a motion 

ing cannot be had unless the lovrer partakes of the nature of a petition for 

court see fit to vacate the filing and a rehearing, and is equally barred by 

order thereof. Wilmerdings ». Fowler, lapse of the statutory period. Bonia 

(Ci. App.) 15 Abb. Pr. N. S. (N. Y.) 86. v. Green Bay, etc., R. Co., 43 Wis. 210. 

in Florida the filing of the mandate 1. See the following cases construing 

below marks the limitation beyond such statutes and rules: 

which a rehearing cannot be had. California. — Niles v. Edward, 95 

Merchants' Nat. Bank v, Grunthal, 39 Cal. 41; Durgin v. Neal, 82 Cal. 595. 

Fla. 388. District of Columbia, — Adriaans v. 

Bamittitnr Saoalled. — In Wynn v, Lyon, 8 App. Cas. (D. C.) 532. 

Wyait, II Leigh (Va.) 612, the court of Indiana, — Huntington County tr. 

appeals granted a rehearing after the Brown, 14 Ind. 19I; Hutts v. Bowers, 

case had been remanded and a certifi- 77 Ind. 211; Fairbank v. Lorig, 4 Ind. 

caie of the judgment had been sent to App. 451; Pittsburgh, etc., R. Co. v, 

the court below. By order of the court Mahoney, 148 Ind. 196. 

the certificate was revoked, and the Iowa. — Chicago, etc., R. Co. v. Mc- 

lower court was ordered to surcease Kinley. 99 U. S. 148, passing on the 

proceedings till further notice. Iowa practice. 

But a motion to recall the remittitur Louisiana, — Chew v. Flint, 10 La. 

and grant a rehearing will be refused 372; State v. Judges, 48 La. Ann. 1079. 

when the application is not made until North Carolina, — Young v, Greenlee, 

a year after the case has been re- 85 N. Car. 593; Strickland v. Draughan, 

manded, and when in the meantime a 91 N. Car. 103; Barcroft v, Roberts, 92 

new trial has been had, and a second N. Car. 249; Emery v, Raleigh, etc., 

appeal taken. McKenzie v, Sifford, ^2 R. Co., 102 N. Car. 234. 

S. Car. 394. Oregon. — Coyote Gold, etc., Min. 

Frooeddndo Filed Before AppUoatton Is Co. v. Ruble, 9 Oregon 121. 

Barred by Statute. — If an application South Carolina, — Ex p. Smith, 25 S. 

for a rehearing is made in the supreme Car. 108. 

court before the statutory time limited South Dakota, — Wright v^ Sherman, 

therefor has expired, it will be granted 3 S. Dak. 367. 

notwithstanding the fact that a writ of Texas. — Baldridge v, Scott, 48 Tex. 

procedendo and a petition for removal to 178; Franklin v, Hurlburt, i Tex. App. 

the United Stales Supreme Court have Civ. Cas., § 203. 

been filed in the court below. Chicago, Wyoming, — Chadron Bank r. An- 

etc, R. Co. V. McKinley, 99 U. S. 148. derson, (VVyo, 1897) 49 Pac. Rep. 406; 

In Wisoonsin the clerk of the Supreme Cronkhite v. Bothwell, 3 Wyo. 739. 

Court is required by statute to remit the United States Circuit Court of Appeals^ 

papers in the case to the lower court Eighth Circuit, — Crabtree v. McCur- 

within thirty days afier judgment ren- tain, 66 Fed. Rep. i. 

dered, and after that period the court 9. Sams v. Creager, 85 Tex. 497; 

has no jurisdiction to grant a rehear- Houston, etc., R. Co. v. Grigsby, 13 

ing whether the papers have actually Tex. Civ. App. 639; Howard v, Mc- 

been remitted or not. Pringle r. Kenzie, 54 Tex. 171. 

Dunn, 39 Wis. 435. Kotion for Leave to File Fetition — 

And the same rule applies where a Essential Averments. — A motion for 
judgment is reversed, for nonappear- leave to file a petition after the statu- 
ance of the respondent, without a tory time will be refused where it is 
hearing, and a motion is thereafter based on affidavits which seek to con- 
made to vacate the judgment and re- vey the idea that the petitioner was 

M Volume XVIIL 



labMriiig of Appeals. REHEARING, Time of lUkiiig AppUcatioB. 

d. Right Waived by Gross Laches. — An application made 
after long delay, or after the occurrence of circumstances imply- 
ing a waiver of the right to review, may be refused even though 
it is not barred by any statutory limitation.* 

e. Subsequent Action on Petition Filed Within Statu- 
tory Period. — By the weight of authority the court may take 
action on a petition after the time limited for making the appli- 
cation has expired, provided such petition was duly filed within 
the statutory period. But in order to justify this procedure 
something should be done during the term at which judgment 
was rendered, to keep the case withia the jurisdiction of the 
court.* 

inaccessible to his altorney on account made for that purpose. Mills v, Lock- 

of a contagious disease in his family, wood, 40 111. 130; Bernhard v. Brown, 

if it is shown that by the exer- 31 111. App. 385; Pierce t/. Kelly, 39 

cise of reasonable diligence he might Wis. 568; Diedrich v. Northwestern 

have communicated with the attorney. Union R. Co., 42 Wis. 248; Ogilvie v. 

Gough V. Root, 73 Wis. 32. Richardson, 14 Wis. 157. 

An application for leave to file a peti- Petition Lost in TransmiBsioii. — In 
tion after the statutory time, on the Hanson v. McCue, 43 Cal. 178, it was 
ground that the petitioner was not no- held that the time for filing the petition 
tified of the rendition of the judgment could not be enlarged, or a failure to 
in time to file such petition within the file it within the prescribed time ex- 
statutory period, must state the time cused, under the positive prohibition 
when notice was received. This aver- of a rule of the court. But in the case 
ment must be made directly, and not at bar a rehearing was granted since it 
in the form of a mere conclusion, and appeared that the petition was placed 
the application must also allege that in the office of an express company, 
the party was within the state, and duly addressed to the clerk, and in 
that the failure to receive notice was time, under ordinary circumstances, to 
not due to his own fault. Barnesville have reached him within the statutory 
First Nat. Bank ZA. Yocum, 12 Neb. 208. period (transmission by this means 

Ths Statutory Period Will Not Be Ex- being the customary and most reliable 

tended on the ground that' the last day method). And although the petition in 

fell On Sunday, Adams v. Dohrmann, this case did not actually reach the 

63 Cal. 417; nor because of the employ- clerk, it was held that in contemplation 

mentof new counsel after decision ren- of law il was in his hands within the 

dered, Ferris z/. Coover, 10 Cal. 589; time limited by the rule, 

nor because counsel was not aware 1. Turner v. Com., 89 Ky. 78. 

that any period was prescribed by the In New Hampehire questions of law 

rules of the court. Brant v. Gallup, 117 decided by the law term will not be re- 

lU. 640; nor because he was too busy heard when the party has subsequently 

to make the motion within the required proceeded to a trial upon the facts be- 

timc, Kneeland v. Miles, (Tex. Civ. fore presenting his petition. Bell v. 

App. 1894) 25 S. W. Rep. 486; nor is it Woodward, 48 N. H. 437; Bell v. Lam- 

a good excuse that counsel, immedi- prey, 58 N. H. 124; Preston v, Travei- 

alely on receiving notice of the de- lers' Ins. Co., 59 N. H. 49; Amoskeag 

cision, notified another attorney to file Mfg. Co. v. Head, 59 N. H. 563. 

the petition, but that the latter was 2. Lutt v. Grimont, 17 III. App. 308; 

prevented from doing so by sickness, Terrell v. Butterfield, 92 Ind. i; Burr 

Cowen V. Bloomberg, 15 Tex. Civ. c. Lewis, 6 Tex. 76; Bald ridge t/. Scott. 

ApP- 364. 48 Tex. 178; Goddard v, Ordway, loi 

StipnlatioiiB Between the Parties look- U. S. 745. 

ing: to an extension of the time pre- Power of the Court in Vaoation. — 

scribed by the rules of the court are Although the court may have power to 

inedectual. Such an extension, if grant an application after the statutory 

allowable in any case, can only be ob- period has expired, the order must be 

twined by order of the court on motion made in term time, and a petition can- 

55 Volume XVIII. 



totNiikf of AnHftia. kEHBARING, How AifUiatioft U Xadi. 

6. Sow AppUoatioB Ii Ibdo — * a. In General. -^ Applications 
for the rehearing of appeals should be made by petition and not 
by nEiotion supported by affidavits.^ 

not be granted in vacation. Blatch/ord denying the application, and grant a 

V, Newberry, lOO III. 484. rehearing of the eauae. Gratiot v. 

44dill9a»l ll»9toitio9B in favor of Miaaouri Pac. R. Co., 116 Mq. 45o; 

granting the application wiU not bo Prather f/. Phelps, 5 Ky. L. Rep. ;63. 
received as of course after the time lim- 1, Wiilson v. Broder, 24 Cal. too; 

ited for filing^ the petition has expired. Internal Imp. Fund v. Bailey, 10 Pla. 

Hawley ix. Simmons, loi 111. 654. S38; Anonymous, 40 111. 129; Feriich 

And for the sape reapan f:oq9idera' f, Michener, m Ind, 486; Ua^roix v. 

tiop of the application will no( be post- Camor^. 34 La. Ann. 639; Arn^istrong 

poned until another case Involving the v. Sandfora, 60 Hun(N. Y.) 356; Ruffin 

same question has been decided, since v. Harrison, gi N. Car. 398; Taylor v. 

this would amount to the receiving Boyd, 6 Heisk. (Tenn.) 611. 
of such additional suggestions by the where the court in general term has 

court. Furlong v, Riley, 104 III. 97. decided a certain question, and the case 

WksN the JndgM Qaiinot Agrae con- is subsequently brought before it for 

cerning the disposition of the motion, the purpose of determining other ques- 

it does not lapse because not decided tions, the questions determined on the 

within ten days after the adjournment first bearing will not be reconsidered, 

of the term; and it may be disposed of but the parties will be left to seek their 

at the ensuing term. State v. Judges, remedy by appeal unless an application 

48 La. Ann. 1079. ^^^ been regularly made and granled 

A Oanwral Ovdar Oautianing AH PandlBg for a rehearing of the first decision, or 
Xotioni operates to continue a motion unless the court requests a reargument 
for a rehearing which has been deliv- of the matters formerly passed upon, 
ered to the clerk of the court of eivil Wllkins v. Tobacco P. ft M. Ins. Co., 
appeals for filing although it was not 9 Cine. Super. Ct. S04; Lovenberfj^ v, 
actually filed and docketed within the National Bank, 67 Tex. 440. 
prescribed time. By delivery to the OaaaAt Be Obtaiiied by ladireetion. — A 
clerk such motion becomes a pending party who Is not directly entitled to a 
motion and it is not abandoned because rehearing cannot obtain the same by 
the petitioner fails to call it to the at- indirect methods, as, for instance, by 
tention of the court, or to have it taking testimony before the master 
specifically included in the general on a reference, which, had it been sub- 
order of continuance. Houston, etc., mitted to the chancellor, would have 
R. Co. V. Davis, (Tex. Civ. App. 1895) produced a different decree. Maury w. 
31 9. W. Rep. 163. Lewis, 10 Yerg. (Tenn.) 115. 

XotioB Made and ProMeuted Within By iCetion to Vaoato Order DiamisaiBg 
Statntory Period. — Not only must the Appeal. — Where an appeal has been 
petition be filed during the time limited dismissed a reheating cannot be ob- 
by the rule, but it must also be prose- talned by an application to vacate the 
cuted during said time, in order to order of dismissal. Adams v. McPher'- 
justify its allowance after the end of son, (Idaho 1894) 35 Pac. Rep. 690. 
the statutory period. Pringle v. Dunn, 87 Piling a Orow-bilL — Where a de- 
39 Wis. 435. cree has been reversed and the case re- 

Where btire Torm Hat FaMOd Without manded with special directions, a 

Aotion. — An application will not be rehearing cannot be obtained by intro- 

granted at a subsequent term in a case ducing further evidence, or filing a 

where an entire term of the court has cross-bill. Norton v. Moshier, 114 111. 

been allowed to elapse after the filing 146. 

of the petition, without any action Practioe ia tko Poderal Ooiirti. — Where 

being taken, unless good reason for the one of the judges of the United States 

failure to act is shown. McArthur v. Supreme Court, who concurred in a 

Henry, 34 Tex. 143. judgment rendered by a divided bench, 

Order Orormliiig Vormor Order Bonying desires a reargument, the court will 

AppUoatiOB, — When a petition filed order one without waiting application 

within the statutory time has been by counsel; but where the court does 

overruled the court eannot, at a subse- not of its own motion order a reargu- 

qnent term, set aside its former order ment, if counsel desire to have the case 

M Volume XVIII. 






N 



> 



liUirteg •( Iwmi^ REHEARING. Eow ippUwtioii i« Midt, 

A, Form and CoNTi:NT6 of Petition, — The petition should 

set forth in full the grounds on which the application is based, 
and point out spqcifically the points in which the original decision 
is alleged to be erroneous. * 

?^ii9ii % ll«w irffiuMut ~ In stating the facts the petition should 
not proceed to give further reasons in support of the case made 
in the original brief, and an application which is, in forn>, a mere 

argument or brief cannot be considered by the court.* 
^nfmnUty t« >»taf. — Nor can a petition be granted which fails in 

any respect to conform to the rules of the court in which it 13 

filed,' 

reheard, they should spbmit without cation is made on the ground that the 

argument a brief written or printed transcript of the record made by the 

petition or suggestion of the points clerk of the lower court is erroneous, a 

thocght important, and if upon such certified copy of that part of the orig- 

petition or suggestion any judge who inal record which is alleged to have 

concurred in the derision tninks proper been incorrectly copied must be at- 

to^ move for a rehearing, the motion tached to the petition, so that the court 

will be considered. If not so movedt may see that the mistake was due to 

the rehearing will be denied as of the error of the clerk in transcribing the 

course. St. Louis Public Schools v. record ; an affidavit by the clerk stat- 

Walker, 9 Wall. (U S.) 603. ing that the transcript was erroneous is 

1. Arizona, — Anzona Prince Copper not sufficient. Cannady v. State, 37 

Co, t/. Copper Queen Copper Co., (Adz. Tex. Crjm. Rep. 123. 

1896) II Pac. Rep. 396. An Objection Which Is Hot Balsed in 

California, — Willson v. Broder, 24 the Petition cannot be made in a re- 

Cal. iQo. joinder to the respondent's reply to the 

Florida, — Jacksonville, etc., R. Co, petition. Walker v. Missoun Pac. R, 

j' Peninsular Land, etc., Co., 27 Fla, "Co., 68 Mo. App. 465. 

' '57. A Petition Wnloh Incorreetlj States t^e 

9 jl^'^iana, -^ Goodwin v. Goodwin, 48 Beoor^ on appeal will not be considered 

Jna* 584; Western Union Tel, Co. v. by the court. Berry v. Smith, 2 Okla. 

fia,^^\^^^', 50 Ind. 181; Fertich v. 351. 

j*/y^ft^erier, in Tnd. 486, citing Goodwin 3. Jones v. Fox, 23 Fla. 462: Sauls v. 

Jjj ^Ooodwin, 48 Ind. 589; Western Freeman, 24 Fla. 225; Finley v. Calh- 

-0<^^^Q Tel. Co. V. Hamilton, 50 Ind. cart, 149 Ind. 470; Reed v. Kalfsbeck, 

■»^*^ ; Uouisville, etc., R. Co. v, Carmon, 147 Ind. 148; The Dago, 63 Fed. Rep. 

'S*^ }^^; App. 471, 182. 

^uisiatM. — Lacroix v. Camors, 34 3. Kervick v. Mitchell, 68 Iowa 273. 

^^- Ann. 639. Beasonableness of Xnle. — A rule 

^^faryhnd, — Colvin v. Warford, 18 adopted by the court that petitions for 

'^^' ^73. a rehearing must be signed by two 

Massachusetts, — Winchester v. Win- counsel and Indorsed by a judge who 

Chester, 121 Mass. 127. concurred in the decision, to the effect 

^(w York. — Van Wagener ». that a rehearing is adi'isable, is a 

Royce, (Supm. Ct.) 21 N. Y. Supp. 191, reasonable rule and will be enforced. 

Texas, — Hurt r. Evans, 49 Tex. 311; Herndon t/. Imperial F. Ins. Co., iii 

Abord V, Waggoner, (Tex. Civ. App. N. Car. 384. 

1895) 29 S. W. Rep, 797. In Texas it is provided that when a 

fadeftnite Petition. — A petition which party Is not represented by counsel on 

asks for a rehearing'* upon the grounds the hearing a petition for a rehearing 

\ stated in the brief for a rehearing, and presented by the adverse party must 

substantiated by the additional portion state the name and residence of tne first 

of the record, both hercdrith fifed,*' is named party in orderthat a copy of the 

too indefinite In its averments, and will petition may be served upon him. In 

not be granted, Spencer v. Thistle, 14 accordance with this rule it has been 

Neb, 91. held that a petition which does not 

Vlstske in Beeord. — Where the appU- contain the name and residence of the 

57 Volume XVIII. 



L. 



Bahearing of Appoali. REHEARING. How AppUoation If Xado. 

c. Briefs and Citations of Authorities. — In some juris- 
dictions the petition must be accompanied by briefs, and citations 
of tjie authorities relied upon,* while in others this practice is 
condemned as tending to encourage argument on the merits of 
the original case which should be reserved for the rehearing 
itself.* 

Afidayiti Explanatory or Amendatory of the Booord or for the purpose of 
proving facts not in issue on the original hearing should not be 
filed with the petition, and if filed they will not be considered by 
the court.* 

d. Certificate of Counsel. — Petitions for the rehearing of 
appeals arc generally accompanied by a certificate of counsel, but 
this certificate is not allowed the same weight as in English chan- 
cery practice.* 

adverse party will not be considered, briefs which are on file, and upon 

Howard v, McKenzie, 54 Tex. 171. printed briefs to be filed by an amicus 

But the defect is not jurisdictional, curia^ to whom an extension of time 
and if the clerk obtains the informa- has been granted for that purpose, 
tion from other sources, and the petition Breaux v. Negrotto, 43 La. Ann. 426. 
is duly served upon the adverse parly. In Wisoonsin briefs filed with a petition 
a motion to dismiss will be denied, for a rehearing must be printed; writ- 
Houston, etc., R. Co. V. Davis, (Tex. ten briefs are insufficient. Collart v. 
Civ. App. 1895) 32 S. W. Rep. 163. Fisk. 38 Wis. 239. 

Signaturo. — A petition which is 2. In Florida it has been held that it 

signed by a person who is not a pariy, is irregular and contrary to the rule of 

and which does not show in any man- the court to accompany the petition 

ner that the person signed it as attorney with a written argument and citation 

for a party, will not be considered. . of authorities. Smith v, Croom, 7 Fla. 

Apple V. Atkinson, 34 Ind. 518. 180; Florida First Nat. Bank v. Ash- 

1. Spencer v. Thistle, 14 Neb. 21. mead, 23 Fla. 379. 

When the Petition Is Filed by an Inter- But where some of the judges who 

▼ener it must be supported by brief, sat on the hearing have gone out of 

Parker 7/. State, 133 Ind. 178. office since the judgment was rendered. 

Petition Acoompanied by Case on Ap- the rule above stated will be d is re- 
peal. — Where the petition is based on garded, and in such a case the petition 
the ground that there are expressions may be accompanied by a printed 
in the opinion of the court which may brief. Lines v. Darden, 6 Fla. 37. 
embarrass the parties on a new trial, it In the United States Ginmit Conrt of 
must be accompanied by the case on Appeals no new matter can be intro- 
appeal containing the opinion com- duced on a rehearing (especially in 
plained of. Anderson v. Continental equity cases). Therefore, except in 
Ins. Co., (N. Y. 1887) 12 N. E. Rep. 793. special cases, and then only after leave 

In Looisiana the petition must be ac- is granted by the court, no papers can 

companied by a printed statement of be filed except the petition itself, 

all the points and authorities on which Gregory v. Pike, 67 Fed. Rep. 837, 

the party founds his application, and citing Russell z/. Southard, 12 Flow. (U. 

additional time for elaborating argu- S.) 139; Maxwell Land-Grant Case, 122 

ments on such points and authorities U. S. 365. 

may be granted upon a proper show- 8. Boynton 7f. Champlin, 40 III. 63; 

ing, if made before the statutory period Vanneter v. Crossman, 39 Mich. 610; 

expires. Lacroix v. Camors, 34 La. Green v. Castello, 35 Mo. App. 127; 

Ann. 639. Mason v. Pennington, 53 Mo. App. 118; 

But a petition will not be dismissed Maverick v. Routh, 7 Tex. Civ. App. 

on the ground that it is not accompa- 669; Weld t/. Johnson Mfg. Co.. 84 Wis. 

nied by the required statement of points 537; Kalckhoflz;. Zoehrlaut,43 Wis. 373. 

and authorities, if the petitioner stales 4. Winchester v, Winchester, 121 

that he relies solely upon the points and Mass. 127; Hinds v, Keith, 57 Fed. 

authorities cited in his original printed Rep. 10. 

58 Volume XVIII. 



S^hMring of AppMli. REHEARING. Hearing of the AppUeatloiL 

€. Notice, and Service of Copies. — In some jurisdictions 

notice of the application must be given to the adverse party, and 
a copy of the petition served upon him or his attorney.^ 

7. Hearing and Determination of the Application — a. In Gen- 
eral. — No argument on the merits of the original case can be 
allowed on an application for a rehearing,* and the petition is 
generally considered without any oral argument whatever unless 
it is desired by the court.* 

b. Modification of Original Judgment on Hearing of 

Petition. — Material alterations in the original judgment must 
be reserved for the rehearing proper and cannot be allowed on 
the hearing of the petition ; * but verbal errors may be corrected 
at that time although a formal rehearing is denied ; * and in like 
manner the judgment may be corrected so as to conform to the 
pleadings ; • errors in calculation of the amount allowed by the 
judgment may be remedied;'^ and further directions may be 
given as to the payment of costs taxed in the Supreme Court ; ® 

1. In niinolB notice of intention to An Answer to aPetitioBforaSehearing 

apply for a rehearing must be filed with will not be allowed. Anonymous, 40 

the clerk within fifteen days from the Til. 130. 

rendition of the judgment, and unless In Washington, under. Code Pre, 

it is so filed the petition m»y be § 1439. no oral argument is allowable, 

stricken from the files. And a failure Thompson v. Huron Lumber Co., 4 

to file the required notice with the clerk Wash. 600. 

is not remedied by service of notice of Tlie Conrt Kay Prescribe the Terms on 

the application upon the attorney for which the motion shall be argued, 

the adverse party. Louisville, etc., R. Thus argument may be allowed on the 

Co. 7/. Patchen, 167 III. 613. express terms that it shall not operate 

In Iowa it was intimated in an early as a stay of proceedings. Columbia 

case that the application was an ex Min. Co. v. Holter, i Mont. 429. 

parte proceeding, and that notice Argnment Iilmited by Order Indorsed on 

thereof was unnecessary. Zeigler v. Petition. — Where an order by the 

Vance, 3 Iowa 528. But according to judge, specifying the points which 

the present practice of the supreme may be considered, is endorsed on the 

court a copy of the petition must be petition, no other points can be urged 

served on the adverse party, and proof on the hearing of the application, 

of service must be filed with the clerk. Weisel v. Cobb, 122 N. Car. 67. 

Austin V. Wilson, 52 Iowa 731. Costs of the AppUcation. — When the 

In Tennessee the petition must be pre- application is made after the expiration 

sented to the court within ten days of the statutory period it must be 

after the decision is rendered, and a denied without costs. The court hav- 

petition which is marked as filed nine ing lost jurisdiction of the case, has no 

days after the entry of the decree will power to impose costs in deciding the 

be'dismissed, where it appears that the application. Pierce v, Kelly, 39 Wis. 

court had no notice of said petition 568. 

within the time limited by the rules, 4. Clark v, Boyreau, 14 Cal. 634; 
and that the counsel for the adverse Argenti v. San Francisco, 30 Cal. 458; 
party never had any notice whatever. Rhea v. Surryhne, 39 Cal. 581. 
Adams v. Sharon, 89 Tenn. 335. 5. Mechanics, etc., Ins. Co. v. Lo- 
ft. Kraft V, Raths, 45 Mich. 20; zano, 39 La. Ann. 321. 

Pringle V. Dunn, 39 Wis. 435; Wells 6. Winter zf. Fulstone, ao Nev. 260. 

V. Clarkson, 2 Mont. 379. 7. Anger's Succession, 38 La. Ann. 

8. Internal Imp. Fund v, Bailey, 10 492; Arnau v. Florida First Nat. Bank, 

Fla. 238; Gonzales v. State, 35 Tex. 36 Fla. 398; Bolster v. Stocks, 13 

Crim. Rep. 33; Chadron Bank v. An- Wash. 460. 

detson, (Wyo. 1897) 49 Pac. Rep. 406. 8. Jones f . Roberts, 96 Wis. 427. 

59 Volume XVIII. 



IMMMTiiif «r Alpwi*. REHEARING, PraotiM •» Um liOMdw. 

and various other immaterial alterations may be made.^ 

r, Petition Dismissed or Stricken from Fii.es. — 4 m^ 

oonrteoos and Uu9ro(M«ioii^ FfUti^ii will be stricken from the files,^ 

AppUo^Uon Hot in TinM. - Where the application is not made within 
the statutory time it fails, and a motion to dismiss is unnecessary.' 

8. Practice on tho l«hwMriag — <?. Methods of Argument.^ — 

The rehearing is generally had upon briefs filed by the respective 
parties,* and all persons interested in supporting the original 

1. Whtre tbe Advene VuXj GoMentu for a rehearing. Adams v. Field, 95 
to the allowance of the relief sought Mich. 16. 

by the petition, the decree may be Xetked of Argvment Depeadent oa Gir- 

amended without granting a rthaaring. eunstanoee of Cmo. — Where the court 

McKenzie v, Bacon» 40 La. Ann, IJ7- grants a reargumeni on the ground 

After All the Parties ftayeWai?ed Their that there is a decision or principle of 
Sight to apply for a rehearing, and the law which has been overlooked, or that 
case has been certified to the court be- there has been a misapprehension of 
low. a formal rehearing cannot be fact, and counsel have not been heard 
granted, but the court on being advised in regard to these points on the orig- 
of a mistake in the judgment may cor- inal argument, then a formal reargu- 
rect the same without a rehearing, ment should be had in order to allow 
either on it» own motion, or on the ap- counsel to be heard; but when the re- 
plication of a party. Parker v. State, hearing is granted on other grounds it 
133 Ind. 178. generally happens that the argument 

Former Judgment Modified to Freyent of the application involves a rear^u* 

Ckinfliot of Deeisiooe* — In Breaux v, Ne- ment of the matter, and in such cases it 

grotto, 43 La. Ann. 426, where it ap- is an unnecessary waste of time after 

peared that the judgment was in con- granting the application to hear coun- 

flict with a judgment in another case sel again on the reargument. Boles v, 

previously decided by the court, the Duff. 56 Barb. (N. Y.) 574. 
latter judgment was modified, but a Frooedare Freeoribed Iqr Order of Court. 

rehearing of the decision in the case at — In Kirby v. Western Union Tel. Co., 

bar was refused. 4 S. Pak. 439, a reargument was 

DeoisioA KodlAed to Qraat Vew Trial granted, and it was ordered that the 

Bolov. — Where the appellate court has clerk of the court place the case upon 

reversed a judgment ot the lower court the calendar with directions that coun- 

and remanded thp case with directions sel for the appellant prepare his briefs 

to enter judj^^ment in favor of one of upon the questions raised in the peti- 

the parties, it will soniQtimes modify tion, that they be served on the coun- 

its original judgment so as to order a sel for the respondent within twenty 

new tnal below, without heating a for- days after notice of the order, that the 

roal reargument of the case. Pollard respondent have twenty days after such 

V, Putnam, 54 Cal. 630; Giles v, Aus- service to file his brief and serve it 

tin. 34 N. y. Super, Ct. 540; Weld v. upon the appellant's counsel, that, if 

Johnson Mfg. Co., 84 Wis. 537, appellant deemed it necessary, he 

2. Horton z'. Pooohoe* Kelly Banking might have ten days in which to tile 
Co , 15 Wash. 403; Fpulkes v. Howes, and serve a reply brief, and that after 
II La. Ann. 449. the expiration of this time the cause 

8. Dlerolff v. Winterfield, 26 Wis. stand for hearing at such time as 

175. the convenience of the court and the 

Kotiee of Votion to Krike from Filee. — attorneys of the parties might permit; 

A motion to strike the petition from the the same number of briefs, on each 

files must be made upon notice. Chad- side, to be filed in the office of the clerk 

ron Bank v. Anderson, (Wyo. 1897) 49 of the court an is required by the rules 

Pac, Rep, 406. upon an original hearing of a cause. 

4. When a Beheariiig is Granted for In Iowa the petition stands as the 
Newlj Difoovered Byidemee the proofs argument of the petitioner, and the 
will not be opened in the appellate court in its discretion may allow the ad- 
court, but the case will be remanded to verse party to file a reply thereto 
the court below with proper directions within a specified time, but no addi* 

60 Volume XVIII. 



MiAmxing or Appeals. REHEARING. ftaUof Granted. 

judgfment are entitled to be heard In its favor, but the petitioner 

alone can be heard in opposition thereto.^ 

b. How Far Case Is Open. — Where a rehearing is granted 
generally, the whole case is open, and will be examined and con- 
sidered by the court as fully as on the original hearing;* but if 
the application was based on particular errors in the original judg- 
ment, or if the court in granting the rehearing has limited it to a 
certain portion of the case, other points cannot be considered, and 
should not be raised on the reargument.* . 

L I^KW Questions and Amended Records. — Questions 
whid\ were not raised on the original hearing will not be con- 
sidered on a rehearing;* nor will additional or amended records 
recei-vre any attention from the court.* 

9. Xt.«lief Granted. — If the court on rehearing the appeal is 
satisfied that its former decision was erroneous it will correct the 

tiooft.1 t>ci.pefft Of argrumentd can be filed 4. Republic L. Ins. Co. v. Swlgert, 

by eit:li^r party. Webster County v. 135 III. 150; Schafer «>. Schafer.gj Ind. 

HuicHi nson, 60 Iowa 721; Richards v. 586, Manor f. Jay County, 137 Ind. 367; 

Burd-en, 59 lovra 723. Tubbesing v. Burlington, 68 Iowa 69I; 

I& XaOiOisiatia the Supreme Court may Goodenow v, Litchfield, 59 Iowa 

grtnt ma application for a rehearing 226; Minneapolis Trust Co. v. East- 

villioxat. hearing any argument (hereon, man, 47 Minn. 301; Chamberlain v. 

and tucLy pass upon the case Immedi* Northeastern R. Co., 41 S. Car. 3gg. 

aiely ^ritbout refixing it, or it may as- 5. Cramer v. Burlington, 45 Iowa 

slgft ii «Jay for argument. No special 627; Simplot t/. Dubuque, 49 Iowa 630; 

decree granting a rehearing is neces- Nixon v. Downey, 49 Iowa 166; Par- 

9"r, t»ut it is sufficient if the opinion sons v. Parsons, 66 Iowa 754: McDer- 

fleiivered on reargument shows that it mott v, Iowa Falls, eic, K. Co., 85 

^**^«a.de on rehearing, and the decree Iowa 180; Iowa City v, Johnson 

rendered sets aside the previous jurtg* County, 99 Iowa 513; Petitpain v, 

, metit a.nd adjudicates the case anew. Palmer, i Rob. (La.) 221; Wright v, 

"J^terficld ». Levis, 43 La. Ann. 63. Terry, 24 Hun (N. Y.) 228. 

*• Sutnmerlin «r. Reeves^ 29 Tex. Contra.^ In Doty zr. Berea College, 

\ (Ky. 1891) 16 S. W. Rep. 268, a judg- 

^'' ''^inehart v, Bowen, 44 Ind. 353; ment was reversed because the record 

Booher v, Goldsborough, 44 Ind. 490. did not show service on one of the par- 

•" -Arizona Prince Copper Co. y. Cop- ties in interest, but a rehearing was 

P^ Queen Copper Co.. (Ariz. t886) il afterwards granted on the ground that 

r*J- R^ep. 396: Gatiing v, Newell, 12 this record was defective, and on the 

r!?q\ ^^^» Haas v. Evansville. (Ind. rehearing the petitioner was allowed 

'^' St N. E. Rep. 105. to show that the transcript of the rec- 

"^herc a party to an appeal applies ord was erroneous and that the party 

rot le^ve to remit a portion of the judg- had in fact been served. 

"^^^t, sqcIj iadgment will be set aside, ErronMiU Bd<M>rd Presentad Without 

to enable the court to consider the GorrMtiim on SMrgiimeiit. — Where the 

application on a rehearing; and the court of iis own motion has refused to 

reheating will be limited to that particu* consider a bill of exceptions because 

»^ Proposition. Fox v. Hale, etc., Sil- the record showed that it was not filed 

'JI ^»n. Co., (Cal. 1898) 53 Pac. Rep. in time, and a rehearing is subse- 

^°^- quentiy granted on the ground that 

** I&diana when one party is granted the record was erroneous, if the record 

* Rehearing as to particular questions, is presented on rehearing without alter- 

the adverse party. In order to obtain a ation or correction, the adverse party 

shearing as to other questions, must may urge the same obiection thereto 

Petition therefor; but the rule is other- which proved fatal to tke case on the 

y** Ift some Jurisdictions. Gatllnge^. original hearing. Linahan v. Barley, 

^^^^\\ 12 Ind. 118. 124 Mo. j6o. 

61 Volume XVIII. 



B^hMring of Avpaab. REHEARING. Bd!«r Onated. 

same ; ^ and while the petitioner is obliged to confine his argu- 
ments to points presented by his original brief, the court is not 
bound by a similar limitation in deciding the case, and it may 
base its decision on grounds which were not ui^ed either on the 
1 1 earing or on the reargument.* 

If tha Mamben of tlio Court Are EquaUy DlTided in opinion the original 
decision should be adhered to ; ' and the result is the same where 
the court comes to the conclusion that its previous judgment was 
substantially correct.* . 

Bofeot Bomodied Pending Beargnaeat. — The authorities differ as to 
whether the court has jurisdiction to proceed to a determination 
in a case where the defect for which the rehearing was granted is 
waived or remedied pending reargument ; * but it is clear that the 

1. Union Wharf Co. v. Katz, ii And sec in general article Division of 

Wash. 407. Opinion, vol. 7, p. 44. 

Where the appellate court has re- 4. Everson v. Mayhew, 85 Cal. i. 

versed the judgment because the record If the Court Hai Inadvertently Made Up 

did not show service on certain parties and Annoonoed Its Deeiaion without hav- 

to the suit, if it is shown on rehearing ing heard the argument of counsel, it 

that the record was defective and a will re-examine the case, but if it 

stipulation is filed showing that the comes to the conclusion that its first 

service was in fact made, the previous decision was correct that decision will 

judgment will be reversed and the be adhered to. Maddox v, Bramlett, 

judgment of the lower court will be 84 Ga. 89. 

affirmed. St. Louis v. Gleason, 15 Mo. Ezoeitive lodgment — Oftr to Bemit. 

A pp. 588. — If a case has been reversed on ap- 

Diroot Modiiieation of Judgment Ap- peal because the amount allowed by 

pealed From. — In Luthe v, Luthe, 12 the judgment was excessive, and on 

Colo. 429. it was held that the decree rehearing the appellee offers to remit 

of the lower court which was appealed the excess, this correction will be 

from could not be modified on a re- made, but the original judgment will 

hearing of the appeal. The judgment not be altered in other respects. Hyde 

on the rehearing acts on the judgment v. Minneapolis Lumber Co., 53 Iowa 

rendered on appeal, and not directly 243. 

on the decree of the lower court. Withdrawal of Applieation. — Where 

Certifleate Allowing Appeal to United the guardian ad litem of an infant ap- 
States Sapreme Court. — A party to an plies for a rehearing and it is granted, 
action in a state court, who desires a and thereafter one of the infants in 
certificate to enable him to appeal to whose behalf the application was made 
the United States Supreme Court, can- becomes of age before the reargument 
not obtain it on a rehearing unless the is had, and aslcs that the former deci- 
facts necessary to the allowance of sion be allowed to stand, his request 
such certificate appeared on the face of will be granted. Dow v. Dow, (Supm. 
the record which was before the court Ct.) 21 N. Y. Supp. 487. 
on the original hearing. Martin v. 6. Cnrative Act Paesed Pending Bear- 
Cole, 38 Iowa 141. gunent. — Where an act curative of the 

Coflti of Brief Filed on Beargnment. — defect for which the rehearing was 

Where an additional brief has been granted is passed pending the reargu- 

printed for the reargument, the costs ment, the case will be regarded pre- 

thereof, not exceeding ten pages, will cisely as though no opinion had been 

be allowed to the successful party, filed, and the defect will be deemed 

Emry v, Raleigh, etc., R. Co., 105 N. cured. Iowa R. Land Co. r. Sac 

Car. 44, 45. County, 39 Iowa 124. 

8. Lewis V. Labauve, 13 La. Ann. Jadg^ent Satiifled Pending Beargn- 
382; Iowa City z/. Johnson County, 99 ment. — Where the court of its own 
Iowa 513. motion orders a rehearing, but the par- 

9. Richards r, Burden, 59 Iowa 723. ties are ignorant of this order, and the 

03 Volume XVIII, 



iflliowi-fiiir ^ Appeals. REHEARING, EfGMt <m Original JndgmMit. 

decision must be without prejudice to the rights of third parties, 
whdTG such rights have intervened since the rehearing was 
granted.* 

lO. SfTect on Original Judgment — a. Of Petition Filed. — 
Tho filing of a petition for a rehearing does not of itself operate 
as th^ stay of a remittitur,'^ nor does it have the effect of a super- 
sei^^M.^^^ The judgment on appeal is not suspended,* and pro- 
ceecJings which may have been had under the judgment are not 
affeotied thereby.* 

^- Of Order Granting Rehearing. —At common law an 

ord^r granting a rehearing operates as a reversal of the original 
decision.* In some jurisdictions, however, where the common- 

Tenkit.t,i^iir is filed below by the appel- pending the judgment. Doggett v. 

lee, a.Q<l the appellant pays the jadg- Jordan, 4 Fla. 121. 

merk^, a,nd the appellee receives pay. In Iowa it is provided by the code 

ment. ^nd enters satisfaction thereof, that a petition for a rehearing, when 

the ooiiirt is without jurisdiction to filed, suspends the decision if the court 

°i^l^c^ .a-ny further order in respect to on its presentation, or one or more of 

the jixdgment. Hasted v. Dodge, the judges in vacation, so orders, 

(lowra. 1888) 39 N. W. Rep. 668. McKinley v. Chicago, etc., R. Co., 44 

'axriadletion of Court Hot Affooted. — In Iowa 314. 

Rapid Safety Filter Co. v. Wyckoff, (N. In Kontoeky it has been held that 

•^■t-y Ct. Gen. T.) 20 Misc. (N. Y.) petitions filed in the court of appeals 

^9» a. rehearing of a motion to retax suspend the judgment until the appli- 

^Qsts ^^^s ordered, but before the rear- cation is disposed of, without any 

^"J^^rit was had, the judgment under express order of suspension. Turner 

"icli f^he costs were taxed was re- v, Booker, 2 Dana (Ky). 334. 

j^'^^^^i on appeal; but it w.is held that Petition Filed by Order of Oonrt. — If 

.^^^oiart would nevertheless proceed the court on the day of its adjourn- 

^ l***^^«rmine the question of law in- ment makes an order permitting par- 

X^'^^S ^° ^^ rehearing. ties to. file petitions for rehearing in all 

^^^^ontanye v, Wallahan, 84 111. 355. cases decided at that term, within ten 

1^^^^*^ Innooent Third Parties Have days after the date of the order, and a 

^^^^^^ Xand in reliance upon a decree petition is filed in compliance there- 



^^-^ ****pg the title of the vendor, and a with, the effect of filing the petition is 

^^^^ing of this decree is subse- to continue the cause to the next term, 

^ ^otly granted, the judgment ren- and the opinion filed does not become 

^rK^ upon this rehearing must be the opinion of the court until the peti- 

*^^^t prejudice to the rights of said tion is disposed of. State ». Philips, 

K'^^'^a-sers. Dunning r. Bathrick, 41 96 Mo. 570. 

III. 4.25^ 5^ Montanye v. Wallahan, 84 111. 355. 

*• ^Jc p. Dunovant. 16 S. Car. 299. 6. Lipscomb v, Grubbs, 3 Bibb (Ky.) 

. . • Columbia Min. Co. v. Holter, i 392; Sterritt t/. Lockhart, 7 J. J. Marsh. 

\Sv' ^'^^' (Ky.) 554; Longworth v. Sturges, 2 

Wiiere an Appeal Has Been Biimiseed by Ohio St. 104. 

^tf ^purt of appeals the jurisdiction of When a Behearing Is Granted Generally 

ine circuit court to make orders in the the entire judgment as to all parties to 

case is not effected by the pendency, the appeal is thereby set aside and va- 

iQ the court of appeals, of a motion for cated, and the cause goes back upon 

4 rehearing. Chappell v. Chappell, 86 the docket for resubmission. Gilbert 

^^- 53a. V. Southern Indiana Coal, etc., Co., 62 

^ Real Estate Bank v. Rawdon, 5 Ind. 522. 

S^' 558; Joyner r. Hall, 36 Ark. 513; And if, in such a case, the brief of 

^ ^. Craig, 130 Mo. 590; Chambers the appellant is on file on the second 

V. Hodges, 23 Tex. 104. submission of the cause, the case will 

Whare a Petition for a Behearing Is not be dismissed because it was not 

'^■tpoaod or Continued there should be filed within sixty days after the origi- 

ft simajtaneous order vacating or sus- nal submission. Crown Point First 

63 Volume XVIII. 



at^Mtflikg «r Ayptali. REHEARING. sabM^Mnt BAhoiMiifti. 

law rule has been modified, it is held that when a rehearing (s 
ordered the first opinion is simply suspended and ceases to Havre 
any effect except as incorporated in or approved by the Opinion 
filed on rehearing.* 

c. Of Relief Granted on Reargument* — Where the relief 
originally granted conflicts with that granted on rehearing the 
latter prevails,* but it does not retfoact to disturb any rights 
which have been innocently acquired under the first Judgment.* 

11. Subsequent Behearings. — A second application for a rehear^ 
ing is generally refused;* and especially where it is made by the 
same party who presented the first petitiotti* 

Nat. Bank v. Richmond First Nat. removal of the cause into the United 

Bank) 76 Ind. 561. StMM Circuit Court. Under thbse tit- 

Behearing Limited to A 81ft||U Poi&t. -^ cbmAtAACeB it wM held thAt the jud^ 

If the rehetirtn^ is granted mtxtXf for ment of the supreme court of loWa 

error in awarding costs the case will rendered ou rehearing effe<^ted ti re*, 

not be replaced on the docket. Dewar verseil of its previous judgment grant* 

f. Beirne, McGloin (La.) 75. Irtg a new trial, And thereby withdrew 

1. Morrow v^ Weed. 4 Iowa 77; the case out from under the petition 

Stewart \f. Stewart, 96 Iowa 620; Mat- for removal filed below, and that Aaid 

ter of Peet, 99 Iowa 314. petition for removal WaS therefore in- 

After A case has been AppeAled from eflfectuAl. 
the County Court it is in the etfcuit 8. Montanye v, WalUhAn, 84 III. 355. 
court which has entire control of All 4. Durham «/. Seymour, 10 App. Cas. 
proceedings therein. GrAntIng a re* (D. C.) 374; Trench tf. Strong, 4 Nev. 
hearing in such a case operates as a 87; Williams tr. Conger, 131 U. S. 390. 
suspension of a decree of af&rmance, In Bope v. Ferris, 77 Mich. 299, tne 
And if on the reheAfing the decree of court granted a rehearing on the con- 
the county court is reversed the eaute dition that the defendant make A de- 
proceeds in the circuit court as if posit; no deposit was mAde but the de« 
originally brought there. Summers v. fendant afterWArdS filed a second 
Darne, 31 Gratti (Va.) 7qi. petition Urging prActicAlly the satne 

S. Where the opinion of the trial grounds as the first petition. And giv- 

court determines the eflect of a Hs pin- ing no excuse for his failure to comply 

titns filed by the plaintiff, but the judg- with the terms bf the former order, 

ment rendered on a rehearing of the Under these cIrcumstAnceS it was held 

same case expressly omits Any determi^ thAt the application must be refused, 

nation as to the effect of such lis pen- PoitttS BeServed OA First BAhSAriAg. -^ 

dtns^ the original judgment does not In Z^fvfjt'rt^i Asecond reheAHng cAnnot 

constitute any adjudication on thAt be hAd unless dew points hAve been 

point. Welion r;. Cook, 61 Cal. 481. considered on the first rehearing atid 

PetitiAA for Bemotal, Filed Pending reserved /or A second reatgument. 

Behearlng, BandetAd tnefltel^ttAl. — 1 n Westerfleld z/. Levis, 43 La. Ann. 63; 

Chicago, etc., R. Co. v. McKinley, 99 State v, Willson, 37 La. Ann. 727. 

U. S. 147, the supreme court of loWa Ftrit BShAAriAg DlsiUiBied bjf XistAke. 

reversed a judgment of An inferior — If the Appellate court, after granting 

court and ordered a new trial, but A A petition for a rehearing, has errone* 

petition for a rehearing of the AppeAl ously dismissed the cASe on the rear* 

having been duly presented, it was gument, it may subsequently set Aside 

granted, and on the rehearing a judg^ the order of dismissal on its own mo> 

ment was entered modifying the judg- tion and proceed with the rehearing, 

ment of the lower court and reversing Flash t^. SchwabAcker, 3d La. Ann, 

the first judgment on appeal. After 356. 

the first judgment on AppeAl, but be-* A. Merchants' NAt. Bank t/. Grun* 

fore filing nf the pefition for a new thai, 39 Fla. 388; Garrick v. Chambef- 

hearing, the Appellant hAd obtAined lAin, too 111* 476; Smith ». Dennison, 

And filed A writ of ptoadendd In the loi 111. 657; Newbefry v, BlAtchford, 

lower court and Also a petition for the 106 III. 584. Contra^ Homes t^. Heo« 

W Volume XVIII. 



Stotutory Sehaarings REHEARING. at Law. 



by Adverie Party. — But where one rehearing has resulted 
in an alteration of the original decision, an application by the 
adverse party for a second will be granted, provided the petition 
is filed in accordance with the rules.* 

m. Statutobt Beheabihgs at Law ih Coitbts of Obigdial 

Jttbisdictioh — 1. In Oeneral. — In the state of Alabama rehear- 
ings in actions at law in the circuit court are authorized by the 
code.* 

2. Oronndfl. — The Bemedy Is Purely Bututory, and in order to avail 
himself thereof, a party must show that one or more of the 
grounds enumerated in the statute exist. Thus the application 
will not be granted unless the petitioner has a valid defense ' of 
which he has been deprived by surprise, accident, mistake, or 
fraud;* it must also appear that the judgment complained of is 
not due to any fault of the petitioner, negligence on his part 

rietta, (Tex. Civ. App. 1898) 46 S. W. nature. Waddill v. Weaver, 53 Ala. 

Rep. 871. 58; Renfro v. Merryman, 71 Ala, 195. 

It is very doubtful whether a second To What Judgments Statute Is A^i- 
rehearing can be granted at all on the cable. — Where a defendant is required 
application of the same party, but, if by the court to confess a judgment for 
ibis is allowable in any case, the sec- a part of the plaintiff's claim, as a con- 
ond rehearing can only reach questions dition precedent to the allowance of a 
which were considered upon the first, continuance, he cannot afterwards have 
Crawfordsville r/. Johnson, 51 Ind. 397. a rehearing of said judgment under the 
A notion for a Behearing Which Has statute. Davis v. McCampbell, 37 
Been Granted is no bar to a second mo- Ala. 609. Nor is the statute applicable 
tionbythe same party. The effect of tocasesof common-law certiorari, .fjr^. 
graniinf^ the first motion is that the Madison Turnpike Co., 62 Ala. 93. 
judgment is set aside and its entry va- 8. A Defense Which Is Merely Formal 
cated, and the case goes back on the and Technical, and does not go to the 
calsodar to be heard and considered merits, is insufficient. Relief should 
as if it had never been decided, and only be granted in cases where its re- 
where it is apparent that both of the fusal would work substantial injustice, 
former decisions are erroneous there and would deprive the petitioner of re- 
can be no objection to the allowance of lief to which he is entitled in equity, 
the second application. Fallass v. Waddill v. Weaver, 53 Ala. 58. 
Pierce, 30 Wis. 443. 4. Oroonds Held to Be Insufficient.— In 
^« Brant v. Gallup, 117 111. 640. Stewart v. Williams, 33 Ala. 492, a re- 
8. Code Ala. (1896), § 3342, provides hearing was refused although the peti- 
tnat *• when a party has been prevented tion alleged that one of the documents 
irom making his defense by surprise, read in evidence by the adverse party 
accident, mistake, or fraud, without on the trial was erroneous, and that 
lault onhispart, he may • • * ap- petitioner was not aware of the mistake 
P'y for a rehearing at any time within therein until after the trial; that peti- 
!°|jr months from the rendition of the tioner was not personally present at 
J'^JSment." the trial, which was held at a distant 
Pnrpoge of tiie Enactment. — The cases place; that the case had previously 
in^'hicharehearingmay be had under been submitted to arbitrators, which 
this enactment are substantially the submission, however, was rescinded 
same as those in which a party might for noncompliance of the adverse 
lormerly obtain relief in equity from a party; and that after revocation of the 
i»idgmeat at law. The purpose of the submission the case was tried without 
statute is to provide a remedy less ex- further notice to the petitioner. 
pensive than a resort to equity, and in An Erroneons Opinion as to the Compe- 
view of this fact the court should tenoy of a Witness is not such a mistake 
always keep in mind the principles of as to authorize a rehearing, especially 
^uity, in deciding applications of this where the testimony of said witness 

18 Encyc. PL & Pr. — 5 65 Volume XVIII. 



WMuUkj BabMringt REHEARING. «t Urn. 

being a bar to the allowance of a rehearing however meritorious 
the defense in question may be.* 

■IHalBB, Hfgllgtnoe, or A^bm of OoanMl. — A rehearing will not be 
granted on account of the negligence, mistaken advice, or over- 
flight of counsel,* or his absence from the hearing.* 

AHfttoo of Pftrty or Irrofular Frooadnro on Hetiing. — Nor can the 

absence of the party,* or immaterial irregularities in procedure on 
the hearing, be urged as grounds for granting the application.* 

would not have been admissible, even 8. Wheeler v, Morgan, 51 Ala. $73; 

though he was competent. Bruce v. Ex p. Wallier, 54 Ala. 577; Blood f. 

Williamson. 50 Ala. 313. Beadle, 65 Ala. 103. 

InaUUty to Proenro the Taetlmony of an 8. Absenoo of CoussoL — Shields v. 

Important WitnMO on the trial is not Burns, 31 Ala. 535. Even though the 

anfficieat ground for a rehearing where attorney's absence was caused by ur« 

the application simply avers that the gent professional engagements in an- 

said witness '* moved and traveled other court a rehearing cannot be had, 

about a great deal, before said trial, as a matter of right, on that ground, 

audit was exceedingly difficult to ascer- Brock v. South, etc., Alabama R. Co., 

tain his whereabouts, so as to obtain 65 Ala. 79. 

his testimony." Allin«ton v. Tucker, In Renfro r. Merryman, 71 Ala. 195, 

38 Ala. 655. the plaintiff and his attorney attended 

kiitaltoii Belief that flervioa of BTUumoiis court on two days of the first week of 
Wai niOgal. — A defendant against the term, but went away on finding 
Whom a judgment by default has been that the cause had not been docketed, 
rendered, cannot obtain a rehearing The cause was subseouently docketed 
under the statute on the ground that and tried without notice to them, and 
the summons was served upon him by in their absence, an attorney employed 
a special officer and that he thoufSfht by the plaintiff in another suit appear- 
that said service was Invalid, and for ing for said plainiifT on the trial 
that reason did not appear in court to without his knowledge or consent. Not- 
make defense to the action. Dothard withstanding these facts the application 
tf, Teague, 40 Ala. 583. of the plaintiff for a rehearing was re- 

1. ITOgligenoe on Pt^of AppUeant. — fused. 

White V. Ryan, 31 Ala. 400; Exp, 4. Absonoe firom the Hearing It Kot Ez- 

North, 49 Ala. 385; Ex p. Carroll, 50 eosablo although the party s attorney 

Ala. 9; Martin v. Hudson, 52 Ala. 279; informed him that the adverse panv 

Shields V. Burns, 31 Ala. 535. would not take advantage thereof. 

A Baheating WiU Kot Bo Granted on Brock v. South, etc., Alabama R. Co., 

the ground that the petitioner was sur- 65 Ala. 79. 

prised, confused, and ignorant of the Or because the party believed that 

proper course to pursue, and that in his case would not be reached, basing 

consequence he did not make his tes- his opinion on the appearance of the 

timony as clear as he might have done docket, and on the opinion of the pre- 

if he had had more time for reflection, siding judge and others, expressed in 

where it appears that this surprise was conversation out of court. White v. 

largely the result of his own negli- Ryan, 31 Ala. 400. 

gence. Barron v. Robinson, 98 Ala. 5. A rehearing was refused where 

351. the petition of the defendant alleged 

Whore an Aetlon at Law Is Continued that some of his witnesses were absent 

by Consent to await the termination of at the trial term, that, contrary to the 

a suit in chancery the parties to the usual custom of the court, he was ruled 

former action must be ready to proceed to a strict showing for a continuance, 

to trial as soon as they are informed of that he was unable to state fully the 

the result in the chancery suit, and a facts which his witnesses might have 

defendant who has been negligent in proved, and that the case was decided 

pfOparing his defense under such without due deliberation on the part of 

circufflstauces Cannot have a rehearing the jury, who were anxious to return 

on the statutortr grounds. Ex p. to their homes. Elliott v. Cook, 33 

O'Neal, 7^ Ala. 560. Ala. 490. 

66 Volume XVIII. 



BUtQtdry XelieAriiigt REHEARING. %x Law. 

3. Time of Malting the Application. — The petition must be filed 
within the time limited by the statute.* 

4. How Application Is Hade — ^. In General. —The manner 
of making the application, the notice to be given thereof, the 
general form of the petition, and the manner in which proceed- 
ings under the judgment are to be stayed pending the hearing, 
are all prescribed by the code, and strict compliance with its pro- 
visions is essential.* 

*. Essential Averments of Petition. — A petition will 

not be entertained unless it affirmatively alleges facts which 
bring the case within the terms of the statute.' 

AAdaYlti of TMrd Penoni filed with the Petition cannot be considered 
as a part thereof, although they may be looked to for other 
purposes.* 

5. Objections to SoAciency of Petition. — Objections to the suffi- 
ciency of the petition must be taken by demurrer, and it cannot 
be dismissed on a mere general motion not disclosing specific 
defects.* 

1. State V, Gardner, 45 Ala. 46; court may see for itself that the de- 
White V. Ryan, 31 Ala. 400; Shields v. fense is meritorious. Chastatn v. Arm- 
Burns, 31 Ala, 535. strong, 85 Ala. 215; and in addition 

Aside from the statute the court can- thereto it must be shown that the de- 

not^rant a rehearing unless the applica- fense is capable of being proven on a 

tion is made before the end of the term, subsequent trial. Ex p, Wallace, 60 

and the effect of the enactment is to Ala. 267. 

extend the period within which the Excuse for Failnre to Kovo fbr How 

petition may be filed. Pratt v. Keils, Trial. — Where the facts alleged in the 

28 Ala. 390; Ex p. Highland Ave., etc., petition would have authorized an ap- 

R. Co., 105 Ala. 221. plication for a new trial, a sufficient 

8« Code Ala. (1896), §^ 3343-3351- excuse for failure to make such appli- 

AndseealsoFullerz'.Boggs, 49 Ala. 127. cation must also be alleged. Blood v. 

The Petition Must Be Presented to the Beadle, 65 Ala. 103. 

Judge in Person, and filing it with the Absenoe of Important Witness. — Fail- 

clerK of the court is not sufficient, ure to make defense resulting from the. 

Ex p. Johnson, 60 Ala. 429. absence of a witness on account of sick- 

SeeoritjfiDr Costs Must Be GKven, and ness may be urged as a ground for 

the necessity for such security is not granting a rehearing, but in such case 

dispensed with by the giving of a the petition must show that he was the 

supersedeas bond. Garrett v, Terry, only witness by whom the defense 

33 Ala. 514. could be established. Martin?/. Hiid- 

Bot a petition filed by a nonresident son, 52 Ala. 279. 

will not be dismissed for want of Biligenoe in Ascertaining the Pacts 

security for costs, after the adverse going to make up the defense must be 

party has appeared and resisted the shown by stating in full the effort 

granting of the interlocutory orders made by the petitioner in that behalf, 

and supeisedeas, without raising any Waddill v. Weaver, 53 Ala. 58. 

objection to ihr want of security. A Petition on the Ground of Hewly Dii- 

Heflin v. Rock Mills Mfg., etc., Co., 58 covered Evidence must allege that the 

Ala. 613. evidence was not discovered until after 

8. Bingham v. Montgomery, 59 Ala. the adjournment of the term at which 

334; Barron v. Robinson, 98 Ala. 351; the judgment was rendered, and must 

Turner Coal Co. v. Glover, loi Ala. show in what the evidence consists, 

289. f^ee also cases cited j»/r^, III. 2. and that it is not merely cumulative. 

Grounds. Freeman v. Gragg, 73 Ala. 199. 

Whttre a Meritorioue Defsnse It Alleged, 4. Callahan v. Lott, 42 Ala. 167. 
the facts constituting such defense 6. State t/. Gardner, 45 Ala. 46; Mar- 
must be set out in full in order that the tin v, Hudson, 52 Ala. 279. 

e? Volume XVIII. 



Behearings in Admindty. REHEARING, SehMringi in Admiralty. 

Amendment. — A defective petition may be amended.^ 

6. Decision of the Application. — When the trial of the petition 
results favorably to the petitioner, the judgment in the original 
action is vacated, the execution issued under it is quashed, a 
rehearing is granted in the original action, the petitioner is let in 
to make his defense in that action, and he may recover of the 
adverse party the costs of the application.* 

BeTiew of Deoition Granting or Befniing Behearing. — Since rehearings of 
this nature are authorized by statute, their allowance is not 
entirely a matter of discretion, and the decision of the court is 
reviewable. An order granting a rehearing under the statute is 
not a final order, and therefore is not appealable, but if improperly 
made it will be vacated by mandamus. An order refusing the 
application, however, is final, and the proper method of reviewing 
the same is by appeal.' 

IV. Beheabihgs ih Admibaltt. — Rehearings in admiralty are 
governed in general by the same principles which control rehear- 
ings in equity. Thus a rehearing will be granted where there is 
a manifest mistake in the decree in a matter which goes to the 
merits of the controversy;** but not on the ground of newly dis- 

Tlie Demorrer Mnit Be Interpoeed in the in refusing to grant a rehearing is 

Goort Below, and if the objection is not assigned, the appellate court will not 

there taken it cannot be raised on ap- consider whether the application was 

peal. Pynes v. State, 45 Ala. 52. made in time, or whether the petition 

A Demurrer Is Safflcient Which Alleges was legally sufficient, unless the point 

that the petition does not show that the is urged in argument by appellants 

alleged accident, fraud, or mistake oc- counsel. Cook v. Patterson, 35 Ala. 

curred without fault of the plaintiff or 102. 

petitioner. Brock v. South, etc., Ala- Praotioe After Order Granting Sehearin^ 

bama R. Co., 65 Ala. 79. Is Vacated. — An order granting a re- 

1. Dothard s. Teague, 40 Ala. 583; hearing which is made during vacation, 
Seymour v. Farquhar, 95 Ala. 527. contrary to the code, which provides 

A petition may be amended after a that the application shall be heard and 

judgment of the circuit court improp- determined in term time, will be va- 

erly sustaining a demurrer thereto has cated on mandamus. But the vacation 

been reversed by the supreme court, of the order leaves the petition for a re- 

and the case remanded, ^x/. North, hearing pending in the circuit court, 

49 Ala. 385. to be heard and determined at the next 

2. Pratt V. Keils, 28 Ala. 390. term. Seymour v. Farquhar, 95 Ala. 

3. Callahan v, Loit, 42 Ala. 167; 527. 

Fuller V. Boggs, 49 Ala. 127; Ex p. 4. In the courts of admiralty of the 
North, 49 Ala. 385; Carroll ?/. Vaughan, United States a rehearing will be 
48 Ala. 352; Bruce r. Williamson, 50 granted if there is a substantial mis- 
Ala. 313; Ex p. Walker, 54 Ala. 577; take in the decree even though no 
Heflin v. Rock Mills Mfg., etc., Co., 58 fraud is shown, and there was some 
Ala. 613; O'Neal v. Kelly, 72 Ala. 559; slight negligence on the part of the pe- 
Seymour t/. Farquhar, 95 Ala 527. titioner at the original hearing. But in 

Where a Judge, in Vacation, Befoses to England rehearings in admiralty are 

Grant a Behearing, the decision is not not granted on the ground of mere 

final and the proper remedy is man- negligence or oversight; a direct case 

damns; not appeal. Chastain z. Arm- of fraud or something equivalent 

strong, 85 Ala. 215; Seymour v. Far- thereto must be shown. The Steam, 

quhar. 95 Ala. 527. boat New England, 3 Sumn. (U. S.) 

Where the Appeal Is from the Original 495. citing The Fortitudo, 2 Dods. 

Judgment, and error by the trial court 70. 

68 Volume XVIII. 



MahBturitkgt of Habeas Gorpui, REHEARING, MaxidamaB» and Certiorari. 

covered evidence, where such evidence might have been obtained 
in tim^ for the hearing/ or where it is disputed and of doubtful 
ciiar-a.<rter;* nor where the application is made after the end of 
the t^rm at which the decree was made.' 

r. 2Leh£Abihgs of Habeas Cobfus^ Mandamus, ahd Cebtiobabi. 

— Wl^ ether decisions granting or refusing applications for habeas 
corpu.^, mandamus, or certiorari may be reheard, depends on the 
practicre of the court in which the petition is filed.* 



1. 1-^^fii.tch V. The Newport, 44 Fed. it is of the last importance to suitors 

Rep. 3<:30. here to have an immediate despatch of 

An appeal in admiralty cannot be their business. Seafaring men are not 

rehesfcrd on the ground that new evi- in circumstances to conduct protracted 

dence lias been discovered concerning and reiterated litigations upon their 

a fa.cc. vrhich was known to the wit- claims, and it is usually better for their 

nesses of the adverse party but not interests to have prompt decisions, 

disclc>sed ty them, and of which the even though adverse to their demands. 

peiit.ioi:icr was ignorant, where no suffi- Experience, I believe, fully justifies 

dent, reason is shown why it was not the remark that whether in the In- 

ascert£i.incd and proved on the original stance or the Prize Court, every delay 

hearirigr^ The Iron Chief, 63 Fed. Rep. and appeal is of serious detriment to 

% the mariner's interest. The sum in 

•• Tfie Havilah, 39 Fed. Rep. 333. dispute is usually small, and of imme- 

8. '^P'pUeation iitar End of Term. — diate necessity to the suitor. It is for 

The Kl ariha, Blatchf. & H. Adm. 151; his interest, therefore, thai the most 

™^St:eamboat New England, 3 Sumn. speedy decision possible should be ob- 

(U. S.) ^Qj. The Comfort, 32 Fed. Rep. tained, and that, when it is adverse to 

3*7; I*ctty V. Merrill, 12 Blatchf. (U. him he should rather go immediately 

^''. ' ^ - to his employment than linger over the 

'"^ ,Tlie Martha, Blatchf. & H. Adm. contingencies of a reconsideration of 

^^3» *t vras held that an application for his case. These views have probably 

*^^**^3.ring made after the end of the led to the exclusion from courts of ad- 

tertti Q^^ which the decree was rendered miralty of the practice referred to; and 

coiiiti jjQj |jg granted except with the I concur in the sentiment of the emi- 

tree consent of all the parties affected nent men sitting in the English Admir- 

meret>y^ which consent must be in alty and Consistory Courts upon this 

If* ^**^ fir, and entered in the minutes, point, that it is a matter of great doubt 

ine coiirtsaid: " The Court of Chan- whether a power of this description 

eery 3.II0WS a rehearing, upon sufficient should be exercised in this court, with- 

f^sons, at any time before decree en- out the free consent of all parties to be 

rolleci, ^nd it has been permitted at the affected by it." Citing^ The Vrouw, i 

distance of twenty-four years from the Rob. 163; Lawrence v. Maud, i Add. 

Uiae t.lie decree was rendered. Harr. Ecc. 481. 

*^^* 34.I; Mills V. Banks, 3 P. Wms. 8, 4. In California it has been held that 

^^ *^pre. But this practice has never the determination of the court in habeas 

"^^•^ introduced into the courts of com- corpus cases cannot be reviewed by a 

w^^n law or of admiralty, though I am rehearing. £xp, Robinson, 71 Cal. 608. 

^p}- ^Ware of any defect of authority in In Loidsiana it has been held that 

TVfc^ ^ourt to establish such a rule, orders of the supreme court granting 

Iti^characterof the suits usually prose- or refusing the writs of mandamus, 

caied here would, however, deter the prohibition or certiorari are final orders, 

coutt from adopting that practice, un- and therefore open to application for 

• t^^^ great ends of justice were put rehearing. State v. Richardson, 37 La. 

la hazard by withholding it. Usually, Ann. 261. 

69 Volume XVIII. 



REJOINDERS AND SUBSEQUENT 

PLEADINGS. 

By Henry Stephen. 

L HATiratE AKB Vabietieb of, 71. 

I. In General^ 71. 

a. At Common Law^ 71. 

a. Rejoinder^ 71. 

b. Surrejoinder^ 'yi, 

c. Rebutter and Surrebuiier^ 71, 
3. Under Codes ^ 71. 

II. WHXV VECE88ABT AKB ADYISABLS, ^2. 

ni. Efteot of Failubs to Put Iv, 74. 

1. /// General^ 74. 

2. Order to Plead^ 75. 

3. Disobedience of Order to Plead^ 75. 

IT. FoBX OF Pleadxv00» 76. 

1. /« General^ 76. 

2. Conclusion^ 77. 

tf. 7<c? Country y 77. 
^. (9/Vr /<; Verify^ 77. 
V. SlTFFICIEKCT AKD BSQirillTES, 77. 

1. Completeness^ 77. 

2. Necessity to Allege Facts ^ 79. 

3. Pleading Law and Evidence^ 79. 

4. Materiality y 80. 

5. Consistency y 80. 

tf. /« General^ 80. 

^. Immaterial Departure^ 83. 

6. Double Pleading^ 82. 

a. ^/ Common Lau\ 82. 
^. Under Statutes^ 83. 

7. Traverses^ 84. 

VI. SEVEBAirGX OF PAETIES, 85. 

vn. Waiyeb of Defects ih Fbiob PLEADnree^ 85. 
yni. Dexubbeb, 86. 

1. In General, ^6, 

2. Inconsistency^ 86. 

3. Double Pleading, 87. 

4. Wrong Conclusion, 87. 

CROSS-REFERENCES 

See generally articles PLEAS AT LAW, vol. 16, p. 539; REPLI- 
CA TIONS AND REPLIES; SIMILITER; and the General 
Index to this work. 

70 Volume XVIII. 



/ 



d TarietlM of. REJOINDERS, E TC Vato Mm. 

jrox AKD VA]ti£Tis8 Of — 1. Ih 9^(»n4. — Pleftdings £ub- 

sequ^nt to the reply are, with the exception of the rejoinder, not 
veiy £"jrequently met with in practice.* When any of them h 
used £ t: must either traverse some statement of the previous plead- 
ing to ^vhich it is an answer, or must admit the facts alleged therein 
and s^t forth such new facts as neutralize or avoid their effect,* 
AppX±oatio]i of Ordinary Bulei of Pleading. — When necessary to adopt 
thcii" u se, it is generally the case that the same rules are applicable 
totH<^in as to prior pleadings presented by the same party.* 

1 .A.t; Commoii Law — a. REJOINDER. — The first pleading of 
(act siVAbsequent to the reply is the rejoinder, which is the answer 
ollVie defendant to the reply.* 

*• Surrejoinder. — The plaintiff's reply to the rejoinder is 
t\\c svirrejoinder.* 

f- R EBUTTER AND SURREBUTTER. — The next successive plead- 
ings of fact are the rebutter and surrebutter respectively, which 
afe the defendant's reply to the surrejoinder and that of tne plain- 
tiff to the rebutter.* 

. ^' ITato Codes. — As a general rule no pleading after the reply 
's recognized where the code system prevails, but allegations of 
^^^v matter made in the reply are deemed controverted without 
*^y direct denial.^ 

j I 3 Stepb. Com. 527. inq, vol. i, p. 863; Pleas at Law, vol. 

i com ^**'*'^ *'• Lloyd, 9 Exch. 56a, all 16, p, 539; Pleas in Equity, vol. 16, 

^jj^I'^on-law pleading*, with the ex- p. 5^5; Rei'UCatioms and Ripues. 

haV'**^'* of the surrebutter, seem to 4. Com. Dig., tit. Pleader, H. 

" Th ^^^° ^^^' Parke, B., said: B^olader Used IiilMd of Flea.-* When 

^1^ "^ only doubt with us has been the plaintiff newly assigns and the de- 

plj^^'^er the pleadings, somewhat com- fendant rejoins, a plea and not a re« 

Xh^^t^^ ^^^ inartificial, do admit all joinder is proper. "A rejoinder is a^t 

q^ ^^c(s sufficiently to raise the real a plea, nor can it be so regarded." 

g^^stion between the parties. It U to Jones v, McNeill, i Hill L. (S. Car.) 84. 

]i ''^^retted that the litigant parties 6. Com. Dig., tit. Pleader, I, wheic 

u^l ^ not raised the point, as easily it is said that (his pleading was some- 

li^3 ^ have been done without resort- times termed ir»rt</rw//iVfl//tf. " 

pj^ ^p these long and complicated 6. Com. Dig., lit. Pleader, K, L. 

{j^^^'ngs, which are very difficult to Any Pleadiags Bayeiid Tkese, which 

I^^J^^^stand." And he added thai the were very unusual, were not distin* 

^^y^rse of one allegation in the repli- guished by any separate denomiaatioa. 

lon would have raised the whole 3 Steph. Com. 527. 

^Y^tion. la Maieafthnsfltts no further pleading 

^J^ Melson v. Woodbury, i Me. 251, is required after the answer except by 

2 ^^^adings went into a surrebutter, order of court. l^Iontague v. Boston, 

IT • Probate Judge v. Ordway, 23 N. etc., Iron Works, 97 Mass. 50a. 

'. ^S« holding that a rejoinder doing t» Hughes v, Durein, 3 Kan. App. 

^, ^er was bad. See also McGavocJc 63: Board of Education v. Shaw, 15 

'^bitfield, 45 Miss. 454. Kan. 34; Continental Ins. Co. v. 

^^ also a surrejoinder should deny Pesrce, 39 Kan. 396. See also the 

^ Confess and avoid the rejoinder, codes of the different states. 

^^tier V, Titcomb, 10 Me. 53. Fraotlae nader JndlMtire Acta-— Ea^- 

^* I Cbitty on Pleading (i6th Am. land. -- Leave may be granted on terms 

^ \} ^2> ^3* to rejoin, and when permitted the re* 

.^ee iq general, as to these rales, ar- joinder must be delivered within four 

^Kies Answers in Code Pi^eading, vol. days. After a rejoinder the pleadings 

^* P- 777; Answers in Equity Pi.ead. are at an end. 3 Steph. Com. 58S. 

71 Volume XVIII. 



WbAA MaoMMry REJOINDERS ANb aad AdTi»ble. 

H Whev HSCS88AX7 AVS Abtuabls. — Where the replication 
contains new matter, material to a proper decision of the cause,* 
or where the replication concludes with an offer to verify, the 
defendant should rejoin instead of joining issue.* 

Hatter of EitoppeL — Where matter constituting an estoppel does 
not appear in the replication, the defendant, if he relies on the 

TTnAntlioriied Sqjoiiid«r. — The fact truly accounted and to have concluded 

that a rejoinder has been filed when to the country, but that as defendant 

not provided for by the code will not departed from the usual mode and al- 

be ground of error after a trial on the leged in his rejoinder that the sums 

merits, provided substantial justice has mentioned in the breaches assigned in 

been done. Crapster v, Williams, 21 the replication were certain specific 

Kan. 109. sums received by A B from persons 

In Kentnoky all the old common-law whose names were not mentioned, 

pleadings appear to be recognized, thereby the plaintiffs in their surre- 

Bullitt's Civ. Code Ky. (1895), g§ 99, joinder were driven to vary from the 

100. usual surrejoinder and were at liberty 

1. Miller v. Hoc, i Fla. 221; Ruth, to take issue on any of the facts stated 

erford v. Tevis, 5 Ind. 530; Pegram v, in the rejoinder. Calvert v, Gordon, 7 

McCormack, 14 Iowa 141; Atty.-Gen. B. & C. 809, 14 E. C. L. 135. 

V. McQuade, 94 Mich. 439; Hinchy v. It is said in 2 Chitty on Pleading 

Foster, 3 McCord L. (S. Car.) 428; (i6th Am. ed.) 23, that** the rejoinder 

Wilkinson v. Bennett, 3 Munf. (Va.) is necessary where the replication is a 

314; Stevens 7/. Taliaferro, i Wash.(Va.) traverse of the defendant's plea and a 

155; Tottyt'. Donald, 4 Munf. (Va.) 430; tender of issue, not a joinder in issue. 

Moore v, Mauro, 4 Rand. (Va.) 488; or contains new matter.'* So also 

Bobyshall v, Oppenheimer, 4 Wash, in the case of the surrejoinder, re- 

(U. S.) 388. butter, and surrebutter, if the previ- 

Scjoinder in Eqidty. — Where a spe- ous pleading does not complete the 

cial replication is permissible there issue. 

seems to be no reason why a rejoinder 2. Cumberland, etc., R. Co. v. Slack, 
is not proper. There is an instance of 45 Md. 161 ; Southside R. Co. v. Dan- 
one in Vattier v, Hinde, 7 Pet. (U. S.) iel, 20 Gratt. (Va.) 344; Henry v. Ohio 
252. River R. Co., 40 W. Va. 234; Huffman 

Denial of Allegation in Bcjoinder Hot v. Alderson, 9 W. Va. 616. 
Kew Hatter. — To a plea that A B had Information in Nature of Qno Warranto. 
faithfully accounted for all moneys re- — In proceedings to test the title 10 
ceived by him as a collecting clerk the office the relator's replications, which 
replication' was that A B had received concluded with an averment or offer to 
divers sums for which he did not ac- verify, proceeded on the theory that 
count. The rejoinder was that the except as to certain specified precincts 
sums mentioned in the replication were and ballots the returns were correct 
three sums of different amounts, re- and pointed out the illegal votes which 
ceived by him from three persons, and the relator claimed changed the de- 
that he had accounted for those sums, clared result in favor of the respondent 
The surrejoinder was that the sums and showed his noneleclion. It was 
mentioned in the replication were other said by the court: ** We think this 
and different sums than those alleged course of pleading is proper and com- 
in the rejoinder to have been received mendable. It seeks to narrow the 
and accounted for by A B and it con- issues. When the respondent rejoins 
eluded to the country. This was held to the replications, he can either admit 
not an allegation of new matter, but or traverse any of the allegations 
merely a denial of the allegation in the therein set forth. If he claims a mis- 
rejoinder. The court, in holding that count elsewhere, or that there is a mis- 
an averment was unnecessary as a take or fraud elsewhere, he is entitled 
conclusion to the surrejoinder, re- to set that up specifically in his rejoin- 
marked that the regular mode of re- der, and the relator will, by his surre- 
joining to this replication would have joinder, join issue thereon." Atty.- 
been to allege that A B had well and Gen. r. May, 97 Mich. 568. 

73 Volume XVIII. 



Wktt VeMoary SUBSEQUENT PLEADINGS. and AdviBabk. 

estoppel, should rejoin the matter creating it, and should not 
demur, or it will be waived.* 

B«pIieation of Hul Tiel Beeord. — Where the defendant pleads a record 
of another court, the replication nul tiel record may conclude with 
an averment of and prayer for the debt and damages. In such 
case there must be a rejoinder reasserting the existence of the 
record.* 

ImleTaiit AUegationi. — Where the opposite party's last pleading 
contains irrelevant allegations not referring to the subject-matter 
of the controversy there need be no rejoinder or later pleading.^ 

Soffldent Denials inPreTioiu Pleading. — No further answer is necessary 
when the denials contained in the previous pleading are sufficient 
to put in issue the allegations of a former pleading, "* and addi- 
tional averments, in eflfect superfluous and argumentative denials 
of the fact to which a sufficient denial has already been made, may 
be safely disregarded, because they will not be taken as confessed.* 

A 8iirrqoinder Is, Except by Joining lune, improper, when a regular 
issue on a material fact is tendered by the rejoinder, for the plain- 
tiff cannot avoid the issue and plead over other facts by way of 
answer;* but by joining issue he does not admit the truth of 
facts stated by way of inducement to the material traverse.'' 

TriTene in AiBrmative Form. — Where the pleading to which a 
rejoinder or later pleading may possibly be necessary sets out 
affirmatively matter in denial of the opposite party's previous 
pleading, there is no necessity for another pleading, because the 
issues are fully made.** 

Afflrmation on One Side, Benial on the Other. — Where the opposite 
party's pleading contains either a denial of matter affirmed in a 
previous pleading of the party whose turn it is to plead or an 

!• McFarland v, Rogers, i Wis. 452, in their home farm, that no rejoinder 

holdingthat where such matter appears was necessary. 

Jn the replication a rejoinder is un- 6. In Dawes v. Winship, 16 Mass. 

necessary and a demurrer is proper. 291, it was held that if necessary 10 

As to the practice in pleading estop- bring out new facts the plaintifT's 

pels in general, sec article Estoppel, proper course would be to amend his 

*o'' 8, p. 5. replication. 

8. Bobyshall v, Oppenheimer, 4 7. Fowler v. Clark, 3 Day (Conn.) 

Wash. (U. S.) 388. 231, holding, where the replication 

'• Blackburn v. Blackburn, (Ky. alleged that arbitrator's made and pub- 

^869) II S. W. Rep. 712. lishcd an award, indorsed down a nolo 

1 Combs V. Combs, (Ky. 1897)41 S. and delivered certain deeds to grantees, 

?• Rep. 7; Harelmeran v, Sander^, 5 which were accepted, and a rejoinder 

'^y. L. Rep. 860; Jefferson v. Jefferson, set out the revocation of the powers of 

*^ ^y. L. Rep. 701. the arbitrators and traversed the alle- 

•• Combs V. Combs, (Ky. 1897) 41 S. gations of the replication, that it was 

• ^cp- 7. holding, where the answer correct to take issue on the facts tra- 

siated that the defendants had paid the versed and not to notice the allega- 

P'aintiffs respectively various sums in tion as to a revocation in the sur- 

P*yment for their interest in their rejoinder. 

father's estate and the reply denied 8. Grigsby v. Hart, (Ky. 1892) 18 S. 

^oatihe said sums were paid them for W. Rep. 537; Conrad z/. Jenneit, 13 Ky. 

*wch interest, and further alleged that L. Rep. 784. affirming the rule stated 

»uch sums were paid for their interests in the text in the case of surrejoinders. 

78 Volume XVIII. 



Xibot of railure REJOINDERS AND to Pat la. 

affirmation of matter denied, no rejoinder or later pleading is 
necessary.* 

PlMdlng Conelndlng to tha Oonntrx. — Where the opposite party *$ last 
pleading concludes to the country the party whose turn it is to 
plead can only add a similiter,'^ 

PkwUxi^ Setting Up EvUmim Only. — No further pleading is requisite 
where the previous pleading contains matter of evidence only.* 

notion to Xako PlMdhig llort C^aoiflo. — There need be no rejoinder, 
and presumably no later pleading, until disposition has been 
made of motions to make more specific the opposite party's last 
pleading.* 

Withdrawal of Demnrrer in Ordor to Plead. — Where, after filing a 
demurrer to any pleading, the party thinks it better to plead, he 
may move for leave to withdraw the demurrer filed.* 

m Effect of Failube to Put Iv — 1. In OeneraL — Upon a 
failure to rejoin* or to surrejoin^ under circumstances requiring 
such pleadings, the allegations of the replication or rejoinder will 
be taken as true, and evidence introduced to sustain the plea, 
answer, or replication may be excluded,^ because there is no issue 
to be submitted to a jury.* 

Bofecto Not Cored by Yerdiet. — In such case the defect cannot be 
cured by verdict.'® Nor under the strict rule of the common law 

1. In Tinsley v, Ross, (Ky. 1893) 2a lock v. Templer, i Barnes N. Cas. 346, 

S. W. Rep. 313, where the defendani and Bac. Abr., tit. Pleas, N 2. 

pleaded a title in himself, which the 6. Hinchy v. Foster, 3 McCord L. (S. 

replication traversed, it was held un- Car.) 428. 

necessary to rejoin. 7. Dixon v. Ford, (Ky. 1886) i S. W. 

8. I Chitty on Pleading (i6th Am. Rep. 817. 

ed.) 682. S. Atty.-Gen. v. McQuade, 94 Mich. 

Ai to Bimiliten, see article Similiters. 439; Pegram v. McCormack, 14 Iowa 

8. Collins V. Partin, (Ky. 1897)42 S. 141. 

W. Rep. nil, holding that, where the 9. Stevens v. Taliaferro, i Wash. 

defendant pleaded that he neither (Va.) 155; Miller v. Hoc, i Flu. asi; 

signed, executed, nor delivered a note, Lewisburg, etc., R. Co. v. Steee, 77 

nor authorized any one else to sign or Pa. St. 332. 

execute it for him, and the plaintiflf in TrUl Without tene. — In Rutherford 

reply set up that while the defendant v, Tevis, 5 Ind. 530, facts material to a 

did not write his name he made his proper decision of the cause were 

mark, which was attested, no rejoinder alleged in a replication tx> which there 

was necessary, because the issues were was no rejoinder, and the parties went 

complete when the answer was filed. to trial, and the judgment was re- 

4. It was so held where a case was versed. 

submitted on the day following the Where There Was No Rejoinder to a 

overruling of a motion to make a reply special replication to a plea of the stat- 

more specific, for the rejoinder was not ute of limitations it was held there was 

due until the motion was disposed of no issue, and judgment for the plain- 

and the defendant should have been tif! was reversed. Totty v, Donald. 4 

allowed to plead and take proof in Munf (Va.) 430. 

support of his defense. Moreland v. 10. Miller v. Hoc, i Fla. 221. 

Citizens Sav. Bank. 16 Ky. L. Rep. Objeetiona Waived ~ PeaasylTUilft. — 

860. In Lewisburg, etc., R. Co. v, Sieea, 77 

5. Treasury Com'rs v, Brevard, i Pa. St. 332. it was said by Sharswood, 
Brev. (S. Car.) 11. In this case leave J., in refusing to reverse a caae on tbia 
was given to rejoin issuably on pay- ground: " There was no rejoinder to 
ment of costs. The court cited Sher- this replication. In stri^taess thea 

74 Volume XVIII. 



tf Mlure SUBSEQUENT PLEADINGS. to Fut Im. 

could an objection on the ground of its absence be obviated by a 
statement in the record that a jury was sworn to try the issues or 
rendered a verdict on the issues joined ; * but later cases hold 
that where the record states that issue was thereupon joined it is 
but a misjoining of issue which is cured by the statute of jeofails.* 

2b Order to Plead. — It seems that either party may, in case of 
absence of a rejoinder or other necessary subsequent pleading, 
obtain a rule to plead within a prescribed period.* 

3. Diflobedience of Order to Plead — Failure to Sejoin or Bebut When 
Ordered. — Where the defendant fails to rejoin or rebut when 
ordered to do so, it would seem that the previous pleadings 
should be stricken out and judgment entered as for want of a 
plea.^ 

Fbilve to Sonrajein or Snrrebut When Ordered. — Where the plaintiff did 
not surrejoin or surrebut within the period prescribed by law, the 
common-law practice was for the defendant to sign judgment of 
non pros^ 

there was no issue to be tried by the seems, therefore, in general, that ac- 

.jury. But the parties chose to go to cording to modern practice, where the 

trial on the pleadings without a formal parties have gone to trial on the merits, 

issue, and in this state it is settled that submitting the cause to the jury as 

an omission to compel the opposite though the issues had been formally 

party to perfect the pleadings before- joined, the absence of a rejoinder will 

hand is a tacit agreement to waive not be regarded in an appellate court, 

matters of form and try the cause on Henry v, Ohio River R. Co.,40 W. Va. 

the merits, just as going to trial on a 234; Southside R. Co. v. Daniel, 20 

short plea is, according to our practice, Gratt. (Va.) 344; Moore v, Mauro, 4 

a waiver of the right to demand a plea Rand. (Va.) 488. 

in full form." MiflslMippi. — In Grubbs v. Collins. 

After Ifltiia Has Been Joined upon all 54 Miss. 485, it was held that the in- 

mattersin controversy, if a rejoinder is tendment of Code Miss. (1871), § 622, 

filed, and there is no averment con- was that the parties should settle the 

tained in it which is required to be pleadings before trial, and if the objec- 

traversed, or which can be taken as tion to their completeness and formality 

confessed by reason of the plaintiff's were not made in proper time neither 

failure to surrejoin, there is no error in party should be permitted after trial 

disregarding its uncontroverted affirm- ending in verdict and judgment to com- 

ative allegations. Dixon v. Ford, (Ky. plain of it. This would, mutatis 

1886) I S.'^SV. Rep. 817. mutandis^ be presumably the law in 

[.Wilkinson v, Bennett, 3 Munf. the absence of a surrejoinder, rebutter, 

(Va.) 314; Stevens v. Taliaferro, i or surrebutter. 

Wash. (Va.) 155. 8. i Tidd's Pr. (4th Am. ed.) 693. 

t. Moore e^. Mauro, 4 Rand. (Va.) 488. 4. Petrie v. Fitzroy, 5 T. R. 152; 

A Xere Teohnical Objection. — In South- Wyatt v. Woodlief, i Leigh (Va.) 473. 

side R. Co. v, Daniel, 20 Gratt. (Va.) It was remarked by the court in 

344, it was said that the doctrine that Petrie v, Fitzroy, 5 T. R. 152, that ** the 

the error is cured is " in harmony with master says that in such cases it is the 

the spirit of the modern cases, and the practice to strike out all the pleadings, 

disposition manifested by the courts to And * * • if the defendant do net 

disregard mere technical objections, rejoin it is considered as an abandon- 

unless there be omitted something so men t of the plea." 

essential to the action or defense that 6. i Tidd's Pr. (4th Am. ed.) 693. 

judgment according to law, and the Under the Rules of Trinity Term, 1 

very right of the cause, cannot be William IV., 1681, it was ordered that 

given." no judgment of turn pros, should be 

Mset IHnregiurded on Appeal. — It signed for want of any surrejoinder or 

76 Volume XVIII. 



^orm of ^leadingi. REJOINDERS AND In OenermL 

IT. FOBM OF Pleadings — 1. In General — Raferenoe to Hext Previoiu 

Pleading. — The rejoinder and all subsequent pleadings should refer 
by apt and proper words to the replication or to those pleadings 
to which they are applicable.* 

Thoy Are Entitled, as a rule, in the court and of the term in which 

they are pleaded, the names of the plaintiff and the defendant 

being stated in the margin as in the case of pleas and replications 
generally. Their other component parts are also similar to such 
pleadings.* 

subsequent pleading on the part of the formal commencement or conclusion to 

plaintiff until four days next after a them. Accordingly, to a replication 

demand thereof should have been made which at common law ought to have 

in writing upon the plaintiff, his at- concluded with a verification, a rejoin- 

torney or agent, as the case might be. der " joining issue thereon " should be 

1. Macfarland v. Dean, Cheves L. (S. understood in the same manner as if 
Car.) 64. the defendant had formally traversed 

2. I Chitty on Pleading (i6th Am. it and tendered an issue by a conclu- 
ed.) 682, 683. See also supra^ I. i. In sion to the country according to the old 
General; and articles Pleas at Law, forms. Cumberland, etc., R. Co. t/. 
vol. 16, p. 553; Replications and Slack, 45 Md. i6i, in which case it was 
Replies. remarked by the court: *' We are not 

Under Hilary Roles, 4 William IV., to be understood as sanctioning this 

1S3S, it was ordered that every plead- loose method of pleading. Unques- 

ing should be entitled of the day of the tionably the defendant ought to tiave 

month and year when it was pleaded traversed the averment in the replica- 

and should bear no other time or date, tion, but the omission to do so in a 

and that no venue should be stated in more formal manner is no cause for 

the body of any rejoinder or subse- reversal, as the parties proceeded to 

quent pleading, provided that in cases trial, and the issue was found against 

where local description was at that the plaintiff." 

time required such local description Forms of Subeequent Pleading. — The 

should be given. And it was further forms given in 2 Chitty on Pleading 

provided that it should not be neces- (i6th Am. ed.) 23, are as follows: 

sary to use any allegation of actionem Rejoitider. 

non^ or to the like effect, or any prayer *' In the . The day of , 

of judgment in any rejoinder or subse- A. D. . 

quent pleading intended to be pleaded C. D. \ The defendant joins issue 

in bar of the whole action generally; ats. > upon the plaintiff's replication 

nor should it be necessary in aqy A. B. ) to the defendant's plea [or ' first 

subsequent pleading intended to be plea']." If the replication contains 

pleaded in maintenance of the whole new matter requiring a special answer 

action to use any allegation ol preciudi or a traverse of some particular allega- 

«<7;i, or to the like effect, or any prayer tion, the rejoinder is thus: " The de- 

of judgment; and all rejoinders or sub- fendant, as to the said replication to 

sequent pleadings pleaded without such his said plea [or 'first plea *], says 

formal parts as aforesaid should be that," etc., stating the matter relied 

taken unless otherwise expressed as upon. 

pleaded respectively in bar of the whole Surrejoinder. — If the rejoinder ten- 
action, or in the maintenance of the ders issue: '* And the plaintiff joins 
whole action, provided that nothing issue upon the rejoinder to his replica- 
therein contained should extend to tion to the said plea [or ' first plea.' 
cases where an estoppel is pleaded. as the case may be] of the defendant." 

Under the Maryland Code m uch of the If the surrejoinder introduces new 
common-law strictness has been abol- matter: '* And the plaintiff, as to the 
ished, and it is provided that any re- rejoinder to the replication to the de- 
joinder or subsequent pleading neces- fendant's second plea, says that," etc. 
sary to form a legal defense shall be Rebutter. — If the surrejoinder be not 
sufficient without reference to mere a joinder in issue, but traverses some 
form, nor is it necessary to state any allegation in the previous pleading or 

76 Volume XVIII. 



SoiBdeney SUBSEQUENT PLEADINGS. and Bequiiitei. 

2. CondusioiL — a. To Country. — Where the rejoinder nega- 
tives the affirmations of the replication, or where it asserts what 
the replication has denied, the conclusion should be to the coun- 
try.* So, also, in the case of a surrejoinder containing similar 
negations and affirmations, and mutatis mutandis of either of the 
subsequent pleadings.* 

¥o Hew Hatter. — Where the pleading does not contain any new 
matter the conclusion should be to the country.* 

b. Offer to Verify. — Where new matter is introduced the 
conclusion should be with an averment, or offer to verify.* 

Hnl Tiel BeoorcL — Where there is a rejoinder of nul tiel record it 
is proper to conclude with an offer to verify.* 

V. SIJFFIGIEHGY AHB Eequisites — 1. Gompleteness. — The rejoin- 
der and each pleading subsequent to it must be fully responsive 
to the replication or other pleading to which it applies ; • other- 
alleges new matter, the rebutter wiU where a surrejoinder denied a material 
be: " And the defendant joins [or fact alleged in the rejoinder. 
' takes ' ] issue upon the surrejoinder 3. Williams -u. Whitmore, Kirby 
to the rejoinder to the replication to (Conn.) 249; McGavock z>, Whitfield, 
the defendant's said plea" or " first 45 Miss. 452. 

plea," as the case may be. If it be 4. Andrus v. Waring, 20 Johns. (N. 
necessary to allege new matter in the Y.) 153; Calvert v. Gordon, 7 B. & C. 
rebutter, proceed as follows: " And 809, 14 E. C. L. 135; Probate Judge v, 
the defendant, as to the said surrejoin- Ordway, 23 N. H. 205; Dawes v. Win- 
der, says that," etc. ship, 16 Mass. 291. 

Surrebutter, — '* And the plaintiff A Bejoinder Gonfesung and Avoiding 
joins [or * takes ' J issue upon the de- the replication must conclude with an 
fendant's said rebutter." If necessary offer to verify. Probate Judge z/. Lane, 
to allege new matter, say: ** And the 50 N. H. 556.. 

plaintiff, as to the said rebutter, says InBtanoe of Hew Hatter. — Where a 
that," etc. plea alleged that a suit was not com- 

A B^oinder of a Tender should not menced within a year and the replica- 
conclude in bar of the action, but tion was that the defendants had notice 
should pray judgment whether the of the suit, a rejoinder denying the no- 
plaintiff ought to recover damages by tice and adding that the plaintiff neg- 
reason of the nonpayment of the sum lected to avail himself of the defense of 
alleged to have been tendered. Kart- a statute of limitations clearly intro- 
haus V. Owings, 6 Har. & J.(Md.) 134. duces new matter. M'Clure v. Erwin, 

1. Dawes v. Winship, 16 Mass. 291; 3 Cow. (N. Y.) 331. 

Bowman w. Harper, 17 N. H. 571; Pro- 6. Davis v. Crow, 7 Blackf. (Ind.) 

bate Judge v. Ordway, 23 N. H. 205; 129 

Roberts v. Harriot, i Mod. 2S9: Mor- tfnder the Maryland Code no formal 

gan V. Man, T. Raym. 94. commencement or conclusion to a re- 

TheEffiBOt of a Condniion to the Country joinder or subsequent pleading is nec- 

is that the cause is put at issue. U.S. essary. Cumberland, etc., R. Co. v, 

V. Hodson, 10 Wall. (U. S.) 395. Slack, 45 Md. 161. 

Under Hilary Knlee 4 William IV., 6. U. S. r. Cumpton, 3 McLean (U. 
1838, it was provided that all special S.) 163; McCue v, Washington, 3 
traverses or traverses with an induce- Cranch (C. C.) 639; Dutton z\ Holden, 
mentof affirmative matter should con- 4 Wend. (N. Y.) 643; Kimball v. Pen- 
elude to the country, provided that this ney, 117 Ala. 245. 
regulation should not preclude the op- Gontents of S^oinder — Kentucky. — 
posite party from pleading over to the According to Civ. Code Ky., § 99. a 
inducement when the traverse was im« rejoinder may contain: ** (i) a traverse; 
material. (2) a statement of facts which consti- 

2. Potter V. Titcomb, 10 Me. 53, hold- tute an estoppel against or avoidance 
ing that this was the correct conclusion of (a) facts stated in the reply in sup- 

77 Volume XVIU. 



BniBiitii^ REJOINDERS AND and B«qidiltM. 

wise they will be insufficient.^ 

Hay TraYene or ConfMi and Aroid. — The pleader may either deny 
the allegations of the pleading which he has under consideration, 

port of the plaintifif's original cause of to the capital stock of said bank, the 

action; {b) a defense stated in the reply sum of $500,000. so that the interesi of 

to a set-off or counterclaim; (r) a coun- the creditors of said bank did not 

terclaim stated in the reply." See require the collection of the whole 

Dixon V, Ford, (Ky. 1886) i S. W. Rep. amount of said notes sued on herein," 

817. was held defective as not being re- 

Dtntnrrer and B^dnder to Soplication. sponsive to any allegation of the repli- 

— It being a rule of pleading that if a cation. Ryan v. Vanlandingham, 25 

replication be bad in part it is bad for 111. 128. 

the whole, a tender cannot be rejoined 1. Ryan v, Vanlandingham, 25 111. 

to part of a replication and a demurrer 128; Conard v, Dowling, 7 Blackf. 

filed to the residue. Karthaus v, (Ind.) 481. 

Owings, 6 Har. & J. (Md.) 134. Infuffidont B^oinder. — A rejoinder 

Bepuoatloxi Ayoiding Statute of limita- that the sureties on a bond for prison 

tioni. — Where the replication set up bounds surrendered the principal, who 

that the defendant was a nonresident, was received and discharged by the 

in avoidance of his plea of the statute sheriff, where the replication avers 

of limitations, a rejoinder alleging gen- that no schedule was rendered by the 

erally, a return to the state was held principal according to the condition of 

sufficient. Shapley z/. Felt, 3 N. H. the bond, is insufficient. Miller c/. Bagf> 

12 1. well, 3 McCord L. (S. Car.) 429. 

VnrMponsiyO Bijoindert. — Where the Statute of Limitations. — In the Dis- 

replication was that an estate of an in* trict of Columbia the rejoinder may set 

testate came into the hands of one of up the statute of limitations. The rule 

two administrators, but that neither of requiring it to beset cp by plea intends 

them rendered any inventory to the only to enforce its interposition at the 

probate court, a rejoinder that neither earliest stage of the pleading which 

the estate of the intestate mentioned in discloses its applicability. Wiard v. 

the replication nor any estate whatever Semken, 19 D. C. 475. 

ever came into the knowledge or pos- Bcjoinder Of Hil Bebet. — The plea of 

session of the administrators or either nil debet c^tk never be rejoined when a 

of them was held not responsive. Ed- specialty is the foundation of the ac- 

wards v. White, 12 Conn. 34. tion, though it is proper where the deed 

Where the replication was that*' at is mere inducement. U. S. v, Cump- 

the time of the commencement of this ton. 3 McLean (U. S.) 163. 

suit there was. due to the state of B^jolning Tender. — The rejoinder 

Illinois, which the said assignees were should plead the tender with tipro/ert 

required to pay, the sum of $295,000 in curia. Karthaus v, Owings, 6 Har. 

of state liabilities; also the sum of & J. (Md.) 134. 

$20,000 of state liabilities forfeited to Demurrer to Bijolnder Improper. — 
the state,by reason of the nonpayment of Under the old common-law practice, if 
said $295,000; that there was also out- the rejoinder purports to answer a por- 
standing and unredeemed the bills and tion only of the replication, leaving the 
certificates of said bank, to the amount other unanswered, it is bad; a demur- 
of $34,000, which the said assignees rer thereto, however, is not proper, but 
were t)ound to redeem, and that the a judgment, oi nil dicit as for want of 
assets of said bank had been exhausted the rejoinder should be signed, inas- 
in paying the liabilities of said bank, much as by demurring there is a dis- 
hy said assignees, except the amount continuance by the plaintiff; Com. 
of $100,000, so that the interesi of the Dig., tit. Pleader, E, I; Edwards v. 
creditors of said bank required the col- White, 12 Conn. 34. 
lection of said slock notes," a rejoinder In Conneotiont it seems that the above 
admitting the allegations of the repli- practice does not prevail. If the re- 
cation and alleging that " at the time joinder is insufficient the plaintiff may 
of the commencement of this suit there demur, and it makes no difference 
was due to the plaintiff and Albert C. whether the rejoinder professes to an- 
Caldwell, as such assignees, upon stock swer the whole or part only of the plain- 
notes given upon original subscription tiff's cause of action, or whether it Is 

78 Volume XVIII. 



SUBSEQUENT PLEADINGS. and Baqtdsitet. 

or confess and avoid it, as the facts permit ; * and if he fails to 

adopt either of these courses, all traversable matter in such 
pleading will be taken as true.* 

B«p«titiQii of Previoui Plaading. — The pleader should not repeat his 
own previous pleading, or the later pleading may be stricken out 
on motion.* 

2. Veoewity to Allege Faotn — The pleader must set out his 
facts* in a plain and direct averment, and not in an argumenta- 
tive manner.* 

S. Pleading Law and Siridence. — Matters of law should be care- 
fully omitted from the pleading,* and so also should matters of 
evidence.'' 

pleaded separately or in connection with overruled. "Thereupon the defend- 
other pleas. Edwards v. White, 12 ant, apparently having exhausted the 
Coon. 34. nomenclature of pleadings, offered to 

Duplicity in Adversary* s Pleading. — file a paper which came in the time and 

Even if a rejoinder be double, the sequence of a rebutter, but which it 

plaintiff should, if he pleads, instead called *A.' " This "A" proposed to 

of demurring, surrejoin to the whole escape the charges of the complaint by 

of the rejoinder; it will not be suffi- setting up mauer which was provable 

dent to make a partial answer to it. under the general issue, but the court 

Neff V. Powell, 6 Blackf. (Ind.) 420. was of the opinion '* that it was time 

1. McGavock v. Whitfield, 45 Miss, to put a stop to this bandying back and 

452. forth of averments which were either 

8. Atty.-Gen. v. McQuade, 94 Mich, already in the case or had nothing to 

439. so holding in the case of a rejoin- do with it, and very properly declined 

dcr. See also articles Answers in to allow this *A* to be filed." Louis- 

CoDE Pleading, vol. i, p. 777; Pleas ville. etc., R. Co. v, Orr, (Ala. 1S99) 26 

AT Law. vol. 16, p. 539; Replications So. Rep. 35. 

AifD Replie.*;. Semedy — Alahama. — It seems that 

S. Hightower v. Ogletree, 114 Ala. the remedy for such a defect is a mo- 

94, so holding in the case of a rejoin- tion to strike out the pleading, not a 

der. demurrer. Hightower v. Ogletree, 114 

Vor Shonid the Sorrojoinder be a Here Ala. 94. 

Xepetltlon of what is averred in the 4. Barnes v, Matteson, 5 Barb. (N. 

replication. Western Assur. Co. v, Y.) 375. holding that a rejoinder seek- 

Hall, (Ala. 189S) 24 So. Rep. 936. ing to raise an issue as to the validity 

Where There Was a Plea Son Aeiault of an assignment made by an assignee 

Benuine in an action in trespass, which in bankruptcy should set out the facts 

was confessed and avoided by the rep- on which its invalidity depends, 

lication, a rejoinder which was a mere 5. Tracy v. Rathbun, 3 Barb. (N. Y.) 

reiteration of the plea was held not to 543; Smith v, Lloyd, 9 Exch. 563. 

be an answer to that which confessed 6, Tracy v, Rathbun, 3 Barb. (N. Y.) 

and avoided it. Macfarland v. Dean, 543; McCue v. Washington, 3 Cranch 

Cheves L. (S. Car.) 64. (C. C.) 639. 

Bmoinder a Sepetition of Flea in Eifeot 7. Hoard v. Garner, i Sandf. (N. Y.) 

t Jdnder of Issue. — A rejoinder to a 614, holding that a rejoinder setting 

replication was in part a repetition of forth as the causes of delay in foreclos- 

the pleas, and for the rest denied the ure proceedings the institution of two 

facts alleged in the replication, but be- distinct suits by other parties, in the 

cause it was in eflfect a taking of the Court of Chancery, against the plaintiff 

issue upon the replication it was held and defendant in this action, the mort- 

good upon demurrer. The plaintiff, lak- gagors and other persons, affecting the 

inff issue on it, filed two special surro- validity and operation of the mortgage, 

joinders, which after the manner of the was bad, as such matter, though appro* 

rejoinder harked back upon matters priate testimony on behalf of the de- 

ftlready presented. To the surrejoin- fendant on the issues already taken bv 

ders there was a demurrer which was the replication,was improperly pleaded, 

79 Volume XVIIL 



Bufflciency REJOINDERS AND and BeqnisitM. 

4. Kateriality. — AH material allegations set out in the oppo- 
site party's last pleading must be answered directly and suc- 
cinctly,* and it is insufficient to evade them and set out imma- 
terial matters, thus tendering an issue which on verdict would 
not determine the merits of the controversy and would leave the 
court at a loss for which of the parties to give judgment.* Imma- 
terial averments in a pleading need not be noticed in the subse- 
quent pleading.* 

AUegatioiiB of Time and Plaoe. — When material, an omission of any 
statement as to the time and place when and where the several 
acts set up in the pleading took place will render it defective in 
form and open to a demurrer.^ 

5. Gonnstency —a. In General — Rejoinder Hut Hot Depart from 
Plea. — The defendant must conform his rejoinder to a mainte- 
nance of the defense made by his plea, and is not allowed to shift 
his ground so as to bring forward a new and independent defense 
departing from it.* This is in pursuance of a cardinal rule of 
pleading that the allegations of the pleader must be consistent 

1. Andrus v. Waring, 20 Johns. (N. 16 Mass. i; Hapgood v, lioughton, 8 
Y.) 153; Monroe County r. Beach, 9 Pick. (Mass.) 451. 

Wend. (N. Y.) 144; Union Hank v. Mississippi. — Vanzant v. Shelton, 40 

Clossey, 11 Johns. (N. Y.) 182; Conard Miss. 332; McGavock v, Whitfield, 45 

V. Dowling, 7 Blackf. (Ind.) 481. Miss. 452. 

lune on Lidnceinent. — In Saiteriee v. New Hampshire. — Tarleton v. Wells, 

Sterling, 8 Cow. (N. Y.) 233, to a plea 2 N. H. 306. 

of the statute of limitations the plaintiff AVw York, — Allen v. Watson, 16 

replied that the writ issued on a par- Johns. (N. Y.) 205; Barlow v, Todd, 3 

ticular day within six years after the Johns. (N. Y.) 367; Andrus v. Waring, 

cause of action accrued, and that the 20 Johns. (N. Y.) 153. 

defendant promised within six years Pennsylvania, — M'Sherry v. Askew, 

before that day; the rejoinder did not i Yeates (Pa.) 7q. 

answer the allegation that the writ was England. — Ellis v, Rowles, VVilles 

issued on such a day, but took issue on 638; Roberts v. Marriot, £ Mod. 289; 

an immaterial point that the writ was Fisher v. Pimbley, ii East 188; Dud- 

not sued out within six years after the low z/. Watchorn, 16 East 39; Elliot v, 

cause of action accrued. It was held Lane, i Wils. 334; Palmer v. Stone, 2 

that the rejoinder was bad as being in- Wils. 96; Richards t^. Hodges. 2 Saund. 

consistent. 84; Cutler v. Southern, i Saund. 117; 

2. LangkopfT v. West, 3 Har. & M. Vere «/. Smith, 2 Lev. 5; Sams v. Dan- 
(Md.) 197; McMechan v. Hoyt, 16 Ark. gerfield, 2 Mod. 31; Long v. Jackson, 
303. 2 Wils. 8; Praed v. Cumberland, 4 T. 

Instance of Irrelevant Isine. — Where R. 588. 
the replication was that an account Practioe Under the Englieh Judicature 

was not rendered within one year in Acte. — The rejoinder must not allege 

compliance with the condition of a pro- any fact inconsistent with the defense, 

bate bond, a rejoinder alleging that the 3 Steph. Com. 527. 
account had been rendered after the Illustrations of Departure. — In Co. 

expiration of the year and had been Litt. 304a it is said: ** Whensoever 

allowed was held insufficient. Probate the rejoinder  »  containeth 

Judge V. Tillotson, 6 N. H. 38; Probate matter subsequent to the matter of the 

Judge V. Lane, 50 N. H. 556. bar, and not fortifying the same, this 

8. Potter V, Titcomb, 10 Me. 53. is regularly a departure, because it 

4. Barnes v. Matteson, 5 Barb. (N. leaveth the former and goeth to an- 

Y.) 375. other matter." Thus *' if a man plead 

6. Florida. — Lanier v. Chappell, 2 performance of covenants and the 

Fla. 621. plaintiff reply that he did not such an 

Massachusetts, — Keay v, Goodwin, act according to his covenant, the de- 

80 Volume XVIIl. 



SoAdeiiey SUBSEQUENT PLEADINGS. and Beqniiites; 

with each other. The declaration must be supported by the 
replication ; the plea by the rejoinder.* 

fendant saith that he offered to do it such matter in the rejoinder. Ellis v. 
and the plaintiff refused it, this is a de- Rowles, Willes 638. Aliter^ if they 
parture, because the matter is not par- were not aware of it at that time* 
suant; for it is one thing to do a thing Dixon z/. James, 2 Lutw. 1238. 
and another to offer to do it, and the An Excuse for Nonperformance can- 
other refused to do it; therefore that not be rejoined after a plea of perform- 
sbould have been pleaded in the former ance. This would be " saying * yes ' 
plea." and * no ' to the same point of contro- 
Where ike Defendant Pleads Non versy." Warren v. Powers, 5 Conn. 
Damnificatus generally and the plain- 373. To the same effect see White v, 
tiff replies and shows how damnified, a Clever, 2 Ld. Raym. 1449; Arron v. 
rejoinder that the plaintiff was danini- Crispe, i Salk. 221; Racine r. Barnes, 
fied de injuria sua is a departure. 6 Wis. 472; Ordinary z^. Bracey, I Bre v. 
Richards v, Hodges, 2 Saund. 83. (S. Car.) 191; McGowan v, Caldwell, i 

Where the Statute of Limitations Was Cranch (C. C.) 481. 

Pleaded, and the reply justified neglect Where the Statute of Limitations of 

in suing by reason of insanity, it was ' One State is pleaded and the plaintiff 

held a departure to rejoin that prior to replies a saving clause of the statute, a 

the commencement of the suit the rejoinder of the statute of limitations 

plaintiff had been judicially declared a of another state is an abandonment of 

lunatic and that the causes of action the plea. Harper v. Hampton, i Har. 

mentioned in the replication accrued to & J. (Md.) 453. 

the plaintiff's committee and not to the Confessing and Avoiding in the rejoin- 

plaintiff. Smith v. Fetter, 61 N. J. L. der a matter denied in the plea is a de- 

102. parture. Munro v. Alaire, 2 Cai. (N. 

Departure from Plea of Omnia Per- Y.) 320; Andrus f. Waring, 20 Johns. 

fcrmavit, — In Probate Judge v. Lane, (N. Y.) 153. 

50 N. H. 556, the plaintiff's third repli- Where Liberum Tenementum Is 
cation to a plea of omnia performavit Pleaded, — In Dutton v. Hold en, 4 
alleged that the executor did not. Wend. (N. Y.) 643, it was said that 
within one year, render a just and true where liberum tenementum is pleaded it 
account, although goods came into his is no departure to rejoin to a demise 
hands. A rejoinder alleged that the alleged in the replication that it con- 
executor " made and returned to said tained a reservation to do what was 
judge, upon oath, a just and true ac- complained of as a trespass. Citing 
count of his said administration within Fisher v, Pimbley, 11 East 188. 
thirteen months of the date of said After Pleading No Award \i vrSiS con- 
writing obligatory, to wit, on the 23d sidered inconsistent to rejoin a per- 
day of March, 1869; and the said formance of the award or that there 
judge, after examining said account, was not a breach, or to confess the 
and after hearing such objections as award in fact, but allege that it was le- 
the parties interested in said estate gaily void. House v. Lander, i Lev. 85. 
chose 10 make, if any, allowed said ac- Where the Aboard Was Not Set Out 
count, by which settlement all damages Correctly in the replication a rejoinder 
occasioned to the party or parties inter- setting out the award verbatim was 
ested in this suit for not returning said considered to support the plea of no 
account within one year were settled award, because it showed no legal and 
and allowed." This was held to be a valid award under the submission, 
departure. Fisher v, Pimbley, 11 East 188. 

Consideration for Note. — Where the ConneetieiLt Statute. — In Edwards v. 

plea sei up no consideration for a note. White, 12 Conn. 28, the correctness of 

and the rejoinder was the failure of a the decision in Warren v. Powers, 5 

small part of its consideration, it was Conn. 373, above cited, was questioned. 

held a departure. Kilgore v. Powers, the court having regard to the con- 

S Blackf. (Ind.) 22. structioii of a Connecticut statute au- 

Matter of Estoppel, — If the defend- thorizing the rejoining of "several 

ants knew of the matter constituting matters by distinct rejoinders." 

the estoppel at the time when they 1. Per James, J., in Wiard v. Sem- 

pleaded, it is a departure to set out ken, 19 D. C. 475. 

18 Encyc. PI. & Pr. — 6 81 Volume XVIII. 



•aUi«My REJOINDERS AND and Beqidsltafl. 

DeptrCuM Im VU^din^ SubMqmnt to BeJoisdMr. — The surrejoinder must 
not vary from the case made by the replication,* and presumably 
the rebutter and surrebutter should not shift from the position 
taken up by the preceding pleadings of the defendant and plain- 
tiff respectively.* 

OottiiitMit Xattert IU7 Be M Vp. — The rejoinder or any later plead- 
ing, however, may set up matters as an answer to the facts stated 
in the opposite party's pleadine which are not inconsistent with 
the pleader's previous pleading * 

*. Immaterial Departure. — A variance from the jjarty's 
previous pleadings in time, place, or other matter, when imma- 
terial, is not a demurrable defect.* 

6. Double Pleading —a. At Common Law. — Rejoinders and 
all subsequent pleadings are bad if they tender several distinct 
answers to the pleadings to which respectively they are applicable.* 

1. Dawes v, Winehip, 16 Mass. 291; S.) 163; McCue v. Washington, 3 

Aadrus v. Waring, 20 Johns. (N. Y.) Cranch (C. C.) 639. 

153. Bijoindsr to ITsw Afldgnme&t. — Where 

t. See tt*pra^ I. I. In General, the defendant may (ile as many pleas 

Aider by Btatato. — When (he subject as he desires, a novel assignment has 

of the adversary's pleading is such been held to place him in the position 

that the pleader cannot answer specially of a defendant pleading to a declara* 

without departing from his previous tion, and he may then file as many 

pleadings, but must take Issue upon rejoinders as necessary. Crockett zf, 

the opposite party's pleading, a non- Lashbrook, 5 T. B. Mon. (Ky.) 534. 

joinder of issue is cured by the statute Isiiiee Kot Appearing on Boeozd. — 

of jeofails. Southside R. Co. v. Dan- When a consignor of goods sued ihe 

iel. 20 Gratt. (Va.) 344; Griffie v, Mc- consignees for the proceeds of the sale 

Coy, 6 W. Va. 201. of goods consigned to them, and they 

8. Racine v. Barnes, 6 Wis. 472, set up a claim against him on account 
holding that where performance had of their expenditures incurred in fit- 
been pleaded a rejoinder of any de- ting the goods for market, it was held 
fense to the breaches assigned in the that the consignor could not rejoin 
replication was allowable. See also their negligence in failing to bring an 
Ellis V, Rowles, Willes 638; Dixon v, action against the carriers and owners 
James, a Lutw. 1238, and generally of the ship for damage done to the 
cases cited supra. In the first note to goods as a reply to their claim for re- 
this subsection. imbursemenl, but was driven to an ac- 

4. Thompson v. Fellows, 21 N. H. tion against them for damages. The 
430, holding that a surveyor's warrant court said: ** If it could be done, then 
being as valid and effectual without a the case would be an anomaly — it 
seal as with one, it is immaterial to would present an instance of four is- 
omlt such an allegation from the re- sues tried in one cause and one only 
joinder when the warrant is set out in of them upon the record." Thus 
the plea as being under seal. See also there would be the original claim in 
McMechan v, Hoyt, 16 Ark. 303. assumpsit on the record, one on ac- 

5. Gray v. White, 5 Ala. 490; Stiles count of the defendants not on the rec- 
V. Lacy, 7 Ala. 17; Ryan v. Vanlan- ord,and a third on the plaintiffs' claim 
dingham, 25 111. 128; Neff v. Powell, 6 for damages also not on the record. 
Blackf. (Ind.)42o; Slocumb* ». Holmes, *' Nor do the issues stop here, for to 
I How. (Miss.) 139; Probate Judge v. his rejoinder of negligence, the plain- 
Lane, 50 N. H. 556; Satterlec v. Ster- tiffs in error would be entitled to sur- 
ling, 8 Cow. (N. Y.) 233; Monroe rejoin that this was not a case where 
County r. Beach, 9 Wend. (N. Y.) 144; the carrier and the ship owners were 
M'Clure V. Erwin, 3 Cow. (N. Y.)3i3; liable, and therefore, no negligence 
Barnes v, Matteson, 5 Barb. (N. Y.) could be imputed to them in not suin^ 
375; U. S. V, Cumpton, 3 McLean (U. for the damage done to the cotton. 

W Volume XVIIL 



8eMM«r SUBSEQUENT PLEADINGS. and aeqalaitw. 

Sketion. — The defendant may elect which of several rejoinders 
he will adopt.* 

XAtten Tending to On« Issue. ^- But where the several matters con- 
tained in the rejoinder or later pleading all tend to the same con- 
clusion it will not be double.* And the pleader will accordingly 
not be precluded from the introduction of several facts into his 
surrejoinder if they form one connected proposition.* 

DupUdtjin Adversary** Pltadlng. — Where there is double pleading 
in the replication, if there is no demurrer therefor there must be 
rejoinders to each replication severally ; ^ so also where the 
rejoinder is double the surrejoinder should answer both parts** 

*. Under Statutes. — Where statutes of the different states 
of the Union have so provided, more than one rejoinder or subse- 
quent pleading is permitted: in some cases, however, It is neces- 
sary to move the court for leave to plead double.* 

Kor would that isftue appear upon ihe every legal matter of defense. The 

record." Btown r. Clayton, 12 Ga. court said: '* The two averments, 

564. therefore, form one connected proposi- 

if on B Oemtimr the Court Considers tion, and are constituent parts of the 
Them they will be deemed to have been same enthe defense." Ctting Robin- 
filed by leave. Ryan v. Vanlandin;^- son v. Raley, i Burr. 316; Currie v. 
ham, 25 111. T28. Henry, 2 Johns. (N. Y.) 433; Patcher 

I. Slocamb v. Holmes, 1 How. v. Sprague, 2 Johns. (N. Y.) a62. 

(Miss.) 139. comparison of Beplloation and Rijoinder 

1 M'Ciure v. Erwin, 3 Cow. (N. Y.) in This Respect. — Where the blainiil! 
313. In this case the point or main could not avoid a statute of limitations 
proposition which a rejoinder sought to without showing in his replication a 
establish was that a judgment recov- suit brought and a new promise, these 
ered against the plaintiff was recovered fact$ would combine to make but one 
against him ihtough his own neglect or point therein; but a denial of either 
default, in not availing himself in his fact in the rejoinder would be sufficient 
defense of the fact that a suit was not to bar the plaintiff, and a denial of both 
commenced .within a year after the would therefore be double. Tutlle v. 
escape, and in order to maintain that Smith, 10 Wend. (N. Y.) 3S6. 
proposition, the defendants averred 8. Potter v. Titcomb, 10 Me. 53, hold- 
that they had no notice of the suit, and Inc^ that where it was necessary to 
that the plaintiff defended It without bring tlie neglect of an administrator 
their privity or knowledge. It was to cause certain notes belonging to his 
held tnat this, of itself, was no ground intestate's estate within the terms of 
of defense; for if the plaintiff had set the condition of the administration 
up every matter of defense within the bond, a surrejoinder alleging that the 
power of the defendants, they were not notes were due and a part of the estate 
injured bv the omission. It became and that the defendant was well aware 
Important, therefore, only when con- of those facts was neither multifarious 
nected with the subsequent averment nor double. 

that the plaintiff omitted to avail him- The Idsne tendered KiistBe on a Single 

self of a legal defense. Kor would the Point, though it may include several 

Utter averment alone have been suffi- facts. U. ^. v, Cumpton, 3 McLean 

cietit. The plaintiff, in his replication, (U. S.) 163. 

had distinctly charged the defendants 4. Com. Dig., tit. Pleader, H. 

with notice of the suit. If that aver- 5. Neff v, Powell, 6 Blackf. (Ind.) 

ment was material, and the defendants 420. 

had omitted all answer, the notice 6. Alabama. — Under a statute pro- 
would have stood confessed upon the vlding that *' the defendant in any 
record, and would have been a com- cause may plead as manv several mat- 
plete answer to the allegation that the ters as he may judge necessary to his 
plaintiff had not availed himself of defense,*' there cannot be two rejoln- 

88 Volume XVIII. 



SuAeieney REJOINDERS AND and BaqnisitM. 

7. TrayeneiL — When the traverse in the opposite party's 
pleading is good and is taken to a material point, and when it 
goes to the gist and substance of the action, there can be no 
traverse taken on it ;  but where such traverse is too narrow, 
idle, not well taken, or not pertinent to the matter, but is of that 

ders to the replication. Gray v. White, or agreements contained in any in- 

5 Ala. 490. denture, deed, or writing, or upon any 

Arkuuuui. — A statute permitting a bonds with conditions other than for 
defendant to file as many pleas as the payment of money, could not re- 
necessary was held not to extend to re- join several matters to any one breach 
joinders. By another statute, however, assigned in a replication. To obviate 
the courts were empowered to allow this hardship on the defendant, who 
more than one rejoinder whenever such was practically deprived of the benefit 
course, in their opinion, became neces- of the act authorizing him to plead sev- 
sary to attain the ends of justice, eral matters in his defense because on 
State Bank v. Minikin, 12 Ark. 715. such a bond the plaintiff was permitted 

Conneotiont. — As early as 1S22 it was to declare generally without assigning 
provided that in actions on contracts breaches, the Supreme Court adopted 
with conditions not set out in the plain- a rule that if the plaintiff should de- 
tiff's declaration, the defendant might, clare generall), without assigning 
with leave of the court, rejoin to a rep- breaches, the defendant, upondemand- 
lication setting forth breaches of such ing oyer of the bond or deed, might 
conditions as many several matters by also in writing require the plaintiff to 
distinct rejoinders as he might have deliver to the defendant, together with 
pleaded had the conditions and a copy of such bond or deed, a specifi- 
breaches thereof been set forth in the cation, in the nature of a particular, of 
declaration. Warren v. Powers, 5 the breach or breaches; and that the 
Conn. 373. defendant should have as much time to 

Illinois. — It seems that leave of the plead to the action, after the delivery 

court is required to file more than one to him of such oyer and specification, 

rejoinder. Where several are filed as he had at the time of demanding the 

without such leave, all of them but the same. And further it was ordered that 

first are as if never filed, and are not the plaintiff should not be at liberty, 

properly before the court. Ryan v. without leave of court, to assign in his 

Vanlandingham, 25 III. 128. replication or other pleading any other 

HaasaehnsetU. — Under Gen. Stat, or further breaches. Van Voorst v, 

Mass. (i860), c. 129, ^ 23 (Pub. Stat. Morris Canal, etc., Co., 20 N. J. L. 

1882, c. 167, § 24). no further pleading 167. 

except by order of court is required Hew York. — Under the law extant in 

after the answer. Montague v. Bos- New York in 1831, a double surrejoin, 

ton, etc.. Iron Works, 97 Mass. 502; der was not allowed, although a double 

Cook V. Shearman, 103 Mass. 21; rejoinder was. Oakley r. Romeyn, 6 

School Dist. V. Boston, etc., R. Co., Wend. (N. Y.) 521. 

102 Mass. 552. Sorrejoinders Should Speoifloally Befer 

Kistisuppi. — A statute in force in to Bejoinders. — Where several plead- 

1834, allowing to the defendant the ings are allowed no effect should be ac- 

right of pleading as many pleas as corded to a vague attempt to assign 

might be necessary, was held not to generally surrejoinders to rejoinders, 

apply to rejoinders. Slocumb v. Western Assur. Co. r. Hall, (Ala. 1898) 

Holmes, i How. (Miss.) 139. 24 So. Rep. 936. 

Kew Hampshire. — Gen. Stat. N. H., 1. Brack v. Blanchard, 20 N. H. 333; 
c. 208. § 4 (Pub. Stat. 1891, c. 223, § 4), Bennet v. Filkins, i Saund. 22, note 2. 
does not permit more than one rejoin- Ho Admiition of Faots in Indaoomoit. 
der to a single replication. Probate — Where the rejoinder traverses a ma- 
Judge r. Lane, 50 N. H. 556. terial part of the replication the plain- 
Hew Jeney. — Elm. Dig. 422 did not tiff can surrejoin only by taking issue, 
authorize a defendant to rejoin several but by so doing there is no admission 
matters, and as a result the defendant of the ttuth of facts stated by way of 
in an action on a bond for any penal inducement to the material traverse, 
sums for nonperformance of covenants Fowler r. Clark, 3 Day (Conn.) 231, 

84 Volume XVIII. 



WaiT«r of OefeeU SUBSEQUENT PLEADINGS, in Prior Pleadingi. 

which is sufficiently confessed and avoided before, it may be 
passed by and another traverse may be tendered.^ 

Quality of Travene. — The traverse should be as broad as the 
material averments of the pleading it denies, and one in the 
nature of a negative pregnant is objectionable.* 

Speoial Trarena, — This form of traverse is admissible, although 
little used. When adopted in the rejoinder or any later pleading 
there must be an inducement alleging matter inconsistent with 
the replication or pleading to which it is applicable, but without 
a direct denial of it, so as to lay the foundation of the formal 
traverse.' 

VI Seyekaitce of Pabties. — It seems that where all the 
defendants have joined in pleas in bar and in rejoinders, thereby 
uniting their defense, one of them cannot afterwards interpose a 
separate rejoinder going to his personal discharge.^ 

VH WaIVEB of Defects in PeIOB PLEADIHGS. — AU Formal DefeoU 
in the last pleading of the opposite party are waived by pleading 
to it. Thus, by rejoining such defects in the replication will be 

1. Breck v, Blanchard, 20 N. H. 323. That an immaterial traverse might be 

la this case the defendant justified in passed over and the matter of the in- 

trespass by virtue of an execution ducement traversed, which had been 

issaed upon a judgment obtained properly done in this case by the de- 

agatnst the plaintiff and others, and fendants. 

ihe plaintiff replied that the judgment 2. Probate Judge v. Ordway, 23 N. 

had been paid, without this, that at the H. 205, holding where the replication 

time of the arrest it was in full force said that a balance of the expenses of 

and in no part paid or satisfied. It administration of an estate was unpaid, 

was held tnat a rejoinder that the judg- that a rejoinder that no balance was 

ment was not paid as averred, taking unpaid of the expenses of administra- 

no notice of the formal traverse offered tion of said estate, so far as the same 
in the replication, was good, because 'had been incurred at a particular time, 

the traverse was of matter not alleged was not a denial of the statement of 

in the plea, that the judgment was in the replication, but was in fact a nega- 

Jull force at the time of the arrest; and tive pregnant tacitly admitting the 

't Was too narrow, that the judgment facts it seemed to controvert. See also 

was in full force and in no part satis- McCue v. Washington, 3 Cranch (C. 

fied; for if a part remained unpaid, C.) 639. 

the arrest would have been justified. 3. Bowman v. Harper, 17 N. H. 571. 

In Richardson v, Orford, 2 H. Bl. 4. Andrus v. Waring, 20 Johns. (N. 

182. avtrruiinj^ the judgment of the Y.) 153. 

King's Bench in the same case, riVr^ 4 Denial of Hew FromiBe by Several 

J" ^- 439, it was observed by Eyre, Befendants. — Where the replication 

^' ]•» that ** the first traverse was of averred a new promise by several de- 

the right of all the king's subjects to fendants, a rejoinder by one defendant 

nsh in the arm of the sea, stated by the that he did not promise is insufficient, 

defendants; now this was clearly a as it admits that the others did. Tracy 

hid and immaterial traverse, for it was v. Rathbun, 3 Barb. (N. Y.) 543. 

"'>< only a traverse of an inference of In Treepoae, where all the defendants 

law, but it was so taken that if at the pleaded not guilty, and one of them 

tnal it had been proved that it was the filed a further plea in justification, the 

^^Parate right of others and not of replication was that he used more force 

^"^ plaintiffs, the issue must have been than necessary. A rejoinder that all 

'ound for the plaintiffs, not only with- the defendants did not use more force 

<'Ul their being obliged to prove either than necessary did not pursue the plea, 

possession or right, but where in fact Morrow v. Belcher, 4 B. & C. 704, 10 

they had neither possession nor right." E. C. L. 442. 

85 Volume XVIII. 



i: 



I 
I 

I 



I 

I 

I 

Bmmtf. REJOINDERS AND lAowistt^iV. 

waived,* even if a demurrer has been filed thereto.* 

Bnbitantiai Befeou jTttt Coxid. — Substantial defects in a replication 
will not be made good by any implication in the rejoinder ; but 
if the matter be good though defectively pleaded, a rejoinder 
admitting the matter and tendering an issue on other matters will 
make the replication good.' 

THI. PEMITBftBB — 1. In OenenJ. — As a general rule advantage 
of any insufficiency in a rejoinder or subsequent pleading may be 
taken by demurrer,** but the demurrer will bring into view the 
whole record and will be applied to the first material defect in 
the pleadings.* 

&. IneonaiiteiLcy. — Whether or not inconsistency is a defect of 
form or of substance is not clearly settled. In order to take 

1. Tarlelon v. Wells, 2 N. 11. 306, not admit the necessity of the gale he 
holding that duplicity and a wrong con- ought to have traversed it. If he in- 
clusion of the replication were watered, tended to avail himself of the defective 
S^e also Tuckey v. Hawkins, 4 C. B. averment of the necessity he ought to 
655, 56 E. C. L. 655. have demurred. He has taken neither 

A Bnntjoinder will cure a departure in of these methods, but has pleaded a 

the rejoinder. Keay r. Goodwin, 16 bad rejoinder in which he has not 

Mass. I. traversed the necessity of the gate and 

A ICoti^B f6r Jvd^meat Hon ObstoaU, has thereby admitted it.'* 

on the ground that the caption of a re- 4. Edwards v. White, 12 Conn. 34; 

ply did not state that it was a counter- Herring r. Poritz^ 6 111. App. 208; Sat- 

claim, will not be granted where the tetlec v. Sterling, 8 Cow. (N, Y.) 233; 

defect has been waived by a rejoinder. Tracy v. Rathbun, 3 Barb. (N. Y.) 543; 

Nutter V. Johnson. 80 Ky. 426. Union Bank v. Clossey, 11 Johns. (N. 

2. Aurora City v. West, 7 Wan. (U. Y.) 182; Barnes v. Matteson, 5 Barb. 
r; S.) 82. (N. Y.)375; Rippinghall v. Lloyd, 5 B. 

8. Cutler v. Southern, i Saund. 117. & Ad. 742. 27 E. C. L. 169. 

' In Spear v. Bicknell, 5 Mass. 125, the i. Beinvrrer Carritd Bade. — In Mc- 

j' plaintiff in his declaration alleged that Gavock v, Whitfield, 45 Miss. 452, the 

a trespass had been committed by the plaintiff counted upon a note given by 

defendant upon his close. The defend- a husband and wife, the pleas set up 

ant pleaded that the place in question the coverture of the wife, and the repli- 

was part of a public highway, and that cation was that the consideration of the 

• at the time when the alleged trespass note brought the contract within the 

was committed a gate obstructed his terms of a statute in reference to mar. 
passage across the highway which he ried women, and that she was bound 
opened, as he was entitled to do. The by it. No new matter in avoidance 
replication admitted that the said place was rejoined, and the surrejoinder did 
was a portion of the highway, but not introduce any facts in support of 
^ alleged that the inhabitants of a certain the declaration and replication. A de- 
place and their lessees, of whom he murrer to the surrejoinder was carried 
was one, were entitled to keep up a back to the plea, which was bad on the 
gate for the preservation of the grass ground that the coverture of the wife 
at such seasons of the year as was nee- was no defense to the husband and 
essary, and that at the time of year in would not bar a recovery against him. 
which the alleged trespass was com- On Demvrrer to a SvnrtfoiBder, the re- 
mitted he had found it necessary to joinder being defective, judgment will 
erect the gate in question. The re- be for the plaintiff, if in that pleading 
joinder did not traverse the allegation the first fault was committed. Ordinary 
of ihe necessity for the gate at such v. Bracey, i Brev. (S. Car.) 191. 
time, but did traverse several other dis- Where 9o Cavse of Aotian appeared in 
tinct matters, and it was held bad for a surrejoinder it was held that there 
duplicity. It was considered by the should be judgment for the defendant, 
court that the rejoinder avoided a trial although the rejoinder was bad. Keay 
on the merits. If the defendant *' did v. Goodwin, 16 Mass. i. 

86 Volume XVIII. 



\ 



I 



f 

I 



tknarnt. 



SUBSEQUENT PLEADINGS. Wrong Coadmioa. 



advantage of this defect demurrers both special and general have 
been used at different times. The preponderance of opinion, 
howevetf seems to be that a general demurrer will suffice to raise 
the point.^ 

8. I>oiible Pleading. — The opposite party may demur specially 
lor double pleading on the part of his adversary.* 

1 Wrong Condnaion. — Advantage of an erroneous conclusion 
roust be taken by a special demurrer, as the error is one of form 
only.* 

, Wkere a TriTokos B^^iader was put son, 14 Johns. (K. Y.) 153; Andrus v. 



in for cltrlay and the defendant refused 
to waive it and take issue the plaintiff 
was permitted to sign judgment. Bury 
^'^ Bishop, I Saund. 318^. 

to Both Parties to Amani. — 



Whe 



Waring. 20 Johns. (N. Y.) 160; Munro 
V. Alaire. 2 Cai. (N. Y.) 320; Smith v. 
Felter. 61 N. J. L. 102; Ellis z/. Rowles, 
WiUes 640; rascoe v. Pascoe, 3 Bing. 
N. Cas. 898, 32 E. C. L. 374; Wright v. 



re on demurrer lo a replication it Burroughes, 3 C. B. 690, 54 E. C. L. 
^eiaed that both the rejoinder and the 690; Richards v. Hodges, 2 Saund. 
^Ig* ^^cre not sufficiently full and con- 84. 
anie*^J? both parties had leave to 
(S. rv^* Reynolds v. Torrance, 3 Brev. 

Paia^^^^al Demimen were used in 

ru^ ^* Fox, 16 Mass. 131; White v, 

MCv^f^ 2 Ld. Raym. 1449; Cossens v. 

Co%%ctis. Willes26; NeWU v. Boyle, 11 



2. Neflf V. Powell, 6 Blackf. (Ind.) 
490; Barnes v. Matteson, 5 Barb. (N. 
Y,) 375; Stiles v. Lacy. 7 Ala. 17; State 
V. Green, 4 Har. & J. (Md.) 542; Nichols 
V. Arnold. 8 Pick. (Mass.) 172J McCue 
V. Washington, 3 Cranch (C. C.) 639, 

Oenersl Bemnrrer. — It was said by 



\^, & W. 26; Scarpellini v. Atcheson, 7 Erskine. J., that ** duplicity is not a 
^ • « o*. __ r- ^ T o^ . Triij_. _. ground of objection on general demur- 
rer." Wilkins v. Boutcher. 3 M. & G. 
807, 42 E. C. L. 420. 

^actios under English Jndicatore Acts. 

— Ad inconsistency or departure of a 

Powers. 5 Conn. 373; Lamer v. Chap- substantial character is ground for 

pcU, 2 Fla. 621; Kilgore 1^. Powers, 5 striking the pleading out as embarrass- 

Hlackf. (Tnd.) 22; Keay v. Goodwin, ing. 3 Steph. Com. 527. 

16 Mass. i; Harper v, Hampton, i 8. Bowman v. Harper, 17 N. H. 571; 

Har. & J. (Md.) 461; Sterns v. Patter- State v. Green, 4 Har. & J. (Md.) 542. 

87 Volume XVIIL 



Q. B. 864, 53 E. C. L. 864; Elliot f. 
Von Giehn, 13 Q. B. 632, 66 E. C. L. 
632; Kinder v. Paris, 2 H. Bl. 562. 

Qenend Demnrren were used in Mc- 
Aden v. Gibson, 5 Ala. 345; Warren v. 



RELATORS. 

Sec articles INFORMATIONS IN EQUITY, vol. lo, p. 856; 
MANDAMUS, vol. 13, p. 479; OFFICIAL BONDS, vol. 15, 
p. 83; PARTIES TO ACTIONS, ol. 15. p. 456; QUO 
WARRANTO, vol. 17, p. 383; and consult the General Index, 



RELEASE. 

By S. B. Fisher. 



I. Plea, 88. 

1. Necessity of Special Plea, %Z* 

a. At Common Law, 88. 

b. Under the Code, 89. 

2. Manner of Pleculing Release After Action Com$nenced^ 90. 

a. Plea Puis Darrein Continuance^ 90. 

b. Supplemental Answer, 92. 
r. Amended Answer, 92. 

3. Allegations of Plea^ 92. 

a. Averment of Consideration, 92. 

b. Averment of Seal, 92. 

c. Averment of Account Rendered and Payment Mcule, 93. 

d. Averment of Performance of Conditions of Executory 

Contract, 93. 

4. Release to One Joint Trespasser, 94. 

5. Release by One of Several Interested Parties, 94. 

6. Demurrer to Plea, 94. 

7. Striking Out Pica on Ground of Collusion, 94. 

n. AVBWEB nr SUFPOKT OF PlEA, 95. 

m Bepligatiok, 95. 

I. Necessity Of, 95. 

a. What Matters May Be Replied, 95. 

a. In General, 95. 

b. Non Est Factum, 95. 

c. Procurement of Release by Fraud, 95. 

d. Circumstances Imfalidating Relecue, 97. 
€. Mistake of Parties, 97. 

/. By Joint Plaintiffs Limiting Relecise to Separate Demand 
of One, 97. 

17. ftVEBTIOKS FOE JVET, 98. 

I Plea — 1. Hecesslty of Special Plea — ^. At Common Law. 
— In assumpsit and trespass on the case a release may be shown 

88 Volume XVIII. 



ntft. RE LEA SE. Heoeuity of Special Plaa. 

under the common-law rules of pleading under the general issue, 

and no special plea is necessary.* But it has been held that in an 
action of covenant a release must be specially pleaded.* 
d. Under the Code. — Under the codes and practice acts a 

1. Chicago, etc.. Coal Co. v. Peter- in payment after action brought, but 

8on, 45 III. App. 507; Brown v. Balti- before trial, may be given in evidence 

more, etc., R. Co., 6 App. Cas. (D. C.) under the general issue of nonassump- 

237; Lyon V. Marclay, i Watts (Pa.) sit in an action on the case, or that the 

271; Shafer v. Stonebraker, 4 Gill & record of a recovery from another per- 

]. (Md.) 345. In this latter case it was son equally liable with the defendant 

held that the plea of not guilty, in an to the payment of the same sum for 

action upon the case, puts in issue not which the action is brought may not 

only every material fact contained in also be given in evidence under the 

the declaration, but every defense ad- general issue. * * * In the case of 

missible in evidence under such plea. Bird v. Randall, 3 Burr. 1353, which 

of which the defendant should offer was an action on the case for inducing 

testimony. Under such a plea the de- a journeyman to leave the service of 

fendant may give in evidence a release, the plaintiff, Lord Mansfield says: ' An 

satisfaction, an award, a license to do action upon the case is founded upon 

the act complained of — any justifica- justice and conscience of the plaintiff's 

tion or excuse, or whatever in equity case, and is in the nature of a bill in 

and conscience, according to the exist- equity, and in effect is so; and, there- 

ipg circumstances, precludes the plain- fore, such a former recovery, release, 

tiff from recovering. See also 2 Green- or satisfaction need not be pleaded, but 

^**f on Evidence, § 231 ; article Pay- maybe given in evidence. For what- 

*iENT. vol. 16, p. 170 ever will in equity and conscience, ac- 

^etion for Mousy Had and Beodved — cording to the circumstances of the 

^^ Puis Darrein Gontinuanoe. — In Lyon case, bar the plaintiff's recovery, may 

y^ Barclay, i Watts (Pa.) 271, which in this action be given in evidence by 

, *^ an action on the case for money the defendant; because the plaintiff 

4»5i3^ a.nd received, the court, in hold- must recover upon the justice and con- 

^^f^ ^]:aat a release might be given in science of his case, and upon that only.' 

^^^^■MTMct under the general issue, From an attentive consideration of the 

^^^kJL^Ti executed after suit brought, principles contained in this case of Bird 

j^5L_ci. z •' It is contended that it was not v, Randall, it seems that satisfaction 

evi<^^nce, because it appeared on its or release given after suit brought, but 

ia«r^ "5.0 have been given after the suit before trial, may be given in evidence 

^^-^ nnstituted. The suit was com- in this action, under the general issue. 

10^ "^^^^d in April, 1826, and the release And with this opinion accords the case 

wa.s ^ivcn in September, 1826. It was of Baylies v. Fettyplace, 7 Mass. 325." 

^'^'^ argued that it shoold have been See also article Puis Darrein Continu- 

V^^^^^ puis darrnn continuance XohdLwe ance, vol. 17, p. 262. 

I'^^^^tied the court in the admission of Action for Damages for Personal Iign- 

^\. *"^ evidence. It is true that such is ries. — In Brown v. Baltimore, etc., R. 

^*^ S"«ncral rule; but the court may at Co., 6 App. Cas. (D. C.) 237, it was 

*^^ ^"^ime. to prevent injustice, or for held that in an action for damages for 

?^^^ial reasons, permitaplea to be put personal injuries releases by the plain- 

* ^*^*n€ pro tunc^ although a conlinu- tiff are admissible in evidence under a 

.1^^^ has intervened. Wilson r. Ham- plea of not guilty. 

VI*^^* 4 S. & R. (Pa.) 238. And see 2. Johnson v, Kerr, i S. & R. (Pa.) 

t ^''^an r. Dyer, 10 Johns. (N. Y.) 161. 25, in which case the release was dated 

^^¥>prehend that whenever the pleas on the day of trial. See also Harvey 

^^'^^^►dy entered are sufficient to entitle v. Sweasy, 4 Humph. (Tenn.) 449, in 

^^ party to the admission of the evi- which case it was held that in an 

^ 5^^«, in case it existed before the action of debt on a note a release 

^r^'^Ringof the suit, it may be given in should be specially pleaded. See fur- 

^^^cnce without any additional plea, ther Smith wick v. Ward, 7 Jones 

2. ^ repetition of the same plea puis L. (N. Car.) 64, 75 Am. Dec. 453, 

.'"^W« continuance, * * * No one which was an action for assault and 

"^Ul doubt that money had and received battery. 

88 Volume XVIIL 



PiM. 



RELEASE. lUanw of Fleadiag TUimm. 



release or discharge must be specially pleaded in order to be avail- 
able»' since it is an affirmative defense of new matter.^ 

2. Kanner of Plaading Bdeait After AetUA Canaftneed — a. Plea 
Puis Darrein Continuance — eeMraHy. — As in the case of 

other matters of defense arising after issue joined, the defense of 
a release by the plaintiff may be raised by a ^\edL puts darrein can" 
tinuance^ 



I 



1. San Pedro Lumber Co. v, Rey- 
nolds, 131 Cal. 74; Horton v, Horton, 
83 Hun (N. Y.) 213: Nelson v. Thomi>- 
son 7 Cash. (Mass.) 509; Bender v. 
Sampson, 11 Mass. 42. 

9. San Pedro Lumber Co. v. Rey- 
nolds, 131 Cal. 74; Grunwald v. Freese, 
(Cal. 1893)34 Pac. Rep. 73; Piercy v. 
Sabin, 10 Cal. 30: Glazer v. CHft, 10 
Cal. 303; Coles v, Soulsby, 21 Cal. 50; 
Turner v. Caruthers, 17 CaJ. 431 ; Gyle 
V, Shoenbar, 23 Cal. 538; Horton v. 
Horton, 83 Han (N. Y.) 213; Mc- 
Kyring v. Bull, 16 N. Y. 297; Kirchner 
V. New Hume Sewing Mach. Co., 135 
N. Y. 182; Trotter v. Mutual Reserve 
Fund L. Assoc., 9 S. Dak. 596; Marley 
V. McAnelly, 17 Tex. 658. 

In Haatadiwettt a writing signed by 
the plaintiff in an action of assumpsit 
declaring that it was commenced with- 
out his authority or consent, and that 
he thereby discharges the same, is no 
defense to the action when specified in 
defense under the general issue. Nel- 
son V. Thompson, 7 Cush. (Mass.) 502. 

EtlMUM Considered Htw Xattar. — In 
Coles V. Soulsby, 21 Cal. 47, the court, 
in holding that a release must be 
specially pleaded, said: ** In our prac- 
tice a denial, whether general or 
special, only puts in issue the allega- 
tions of the complaint. The difference 
between a general and special denial 
in this respect is only in the extent to 
which the allegations are traversed. 
New matter must be specially pleaded; 
and whatever admits that a cause of 
action, as stated in the complaint, once 
existed, but at the same time avoids it 
— that is, shows that it has ceased to 
exist — is new matter. It is that mat- 
ter which the defendant must affirma- 
tively establish. Such are release and 
accord and satisfaction. Defenses of 
this character must be distinctly set up 
in the answer, or evidence to establish 
them will be inadmissible. This view 
disposes of the appeal and necessitates 
a rev^ersal of the judgment; but as by 
an amendment to the answer the de- 
fense of an accord and satisfaction may 
be set up on a second trial, it becomes 



important to pass upon the other ques- 
tions raised.*' 

Beleaae as a ConnAtrntion to Be Alk^ed 
and Proved. ^ A brought an action 
against Band averred in his comfdaint 
that C was indebted to A; that B prom- 
ised A to pay C's debt if A would re- 
lease C, and that in consideration of 
the promise A did release C. It was 
held that the release of C, being the 
alleged consideration of the protnise of 
B, was an essential fact to be proved, 
and that unless proved A could not re- 
cover. Gyle V. Shoenbar, 83 Cal. 538. 

UnneoMsary Anogntifnt an to Solsnse in 
Oamplatnt. — In Trotter v. Mutual Re- 
serve Fund L. Assoc, 9 S. Dak. 596, ii 
was held that an allegation as to the 
fraudulent execution of a release is un- 
necessary in a complaint, since the re- 
lease is a matter of defense, but that 
such allegation will not render the com- 
plaint demurrable. The court said: 
*' The release is a matter of defense, 
which should not have been mentioned 
in the complaint. The allegations re^ 
lating thereto must be construed to- 
gether, and if stated in an answer 
would certainly constitute no bar to 
plaintiffs' recovery. They do not de* 
feat plaintiffs' right of action. They 
are inoperativeand useless, and should 
be disregarded as surplusage. Phi). 
Code PI., § 133. Without them we have 
a debt due the estate of five thoasand 
dollars, upon which the administrator 
refuses to bring suit. We think the 
complaint states a cause of action, and 
that the order overruling the demurrer 
should be affirmed. It is so ordered." 

No Necessity for Special Plea. — lo an 
action by a partner to enforce a partner- 
ship demand, advantage of a release of 
the demand, given by another partner, 
although not pleaded in the answer, 
mav be taken by the defendant, when 
the complaint contains averments in 
reference to the release, and the plain- 
tiff himself proves the partnership and 
introduces the release In evidence. 
Hawn V. Seventy-six Land, etc., Cow, 
74 Cal. 418. 

3. z Chitty's Heading (i6th ed.) 619; 

90 Volume XVIII. 









^Ut. RELEASE > Manner of Pleading BelMM. 

WhM UiuMJMiary. — It has been held, however, that a general 
release after the commencement of the action need not be pleaded 
P^is darrein continuance where no prior plea has been filed, nor 
^eed it be pleaded in bar of the further maintenance of the action 
Daerely, but a plea of such release in bar generally is good.* 

Kimball r. Wilson, 3 N. H. 96; Wis- rules relating to pleas puis darrein con- 

^eart v, Legro, 33 N, H. 177; Wade v. tintmnce are founded do noi exist, and 

Kmenon, 17 Mo. 267. See, howerer, that it is sufficient if the matter be 

^ to ejectment. Doe v. Brewer, 4 M. & alleged to have happened after the com- 

5. joo; Doe v. Franklin, 7 Taunt. 9, 2 mencement of the action. It is fuither 

£. C. L. 9, In which cases it was held urged that the matter of the plea in 

fbat the lessor of a plaintiff in eject- this case ought to have been pleaded in 

y^^ni cannot release the action. And bar of the further maintenance of the 

see article Puis Darrein Continuance, action, and not^generally in bar. It is 

To/. 17, p. 262. a general rule that when matter of de- 

niiistratioii of Boleace PlMdable Full fense arises after the commencement 

^^vreixL Continnanoe. — An instrument of the action, it shall be pleaded only 

Qiider seal, in which the obligor in bar of the further maintenance of 

' 2^ re es and binds himself " to dismiss the suit, and the reason of the rule 

4 suit tie has pending, and to ** pay the seems to be that as the action must be 

costs,** though it also contains a deed presumed to have been rightfully com- 

'or tile land in controversy between menced, such matter can. in its nature, 

jl^ni, aixi a covenant to surrender a be an answer only to the further prose- 

Doad for title to the same land, is cutionofit. And it seems that in Eng- 

nether tlieless a release of the cause of land, when matter arising after the 

action pealing, and may be pleaded to commencement of the action is used as 

»^'^\^^\x\\, puis damin continuance, Stin- a defense, the plaintiff is entitled to 

^ V. Moody, 3 Jones L. (N. Car.) 53. costs up to the time when the matter of 

.^ ^Visheart v, Legio, 33 N. H. 177; the bar arose. At least, the remarks 

Kin[il>a.ll V. Wilson, 3 N. H. 96, in which of the court and of the counsel in Le 

^^ tlic court said: ** It is also ob- Bret v. Papillon, 4 East 507, and in 

jccted that the plea in this case wants Harris v, James, 9 East 89, seem 

lorxzi, l>ecause the release is not pleaded strongly to indicate this. But when a 

sirxci^l^-as matter arising /«iV darrein general release is given after the com* 

[f"^*'**«^«r^, but only as arising after mencement of the action, the presump- 

ff ^^^'^naencement of the action. If, tion is, unless the contrary appear, that 

f ^^ ^> plea has been filed, new matter the costs have been adjusted betweeo 

P'^^^^ use arise, it must without doubt the parties, and we are of opinion that 

- ^*-^^ded strictly as arising puis dar- such a release forms an exception to 

^^ Continuance. In such a case, it the general rule, and may be pleaded 

^__'**s by the books that courts have in bar generally." 

aiiva^^ held the dr' ^ '-^ " -.^1— -r._. ».,^ 



Jefendant with much Setting Out Seleaie in Bri«f Statomexit. 

^rV^^riess to state the term from which — In Wisheart v. Legro, 33 N. H. 177, 
* ^ 5^^c term to which the aciion was it was held that, under the act to abol- 
C>»^VVxxued, and that the matters arose ish special pleading, the defendant 
V^X the last continuance. The reason could plead the general issue, and file 
^VV* ^" England, so much strictness therewith a brief statement, setting 
^^s prevailed in relation to pleas /»<> forth a general release and settlement 
^reiH cotttinuaHce is probably that it of the action since the last continuance, 
vas intended to prevent the filing of it appearing that no plea had been pre- 
them at nisi prius^ to obtain delay, viously filed; and that no special plea 
Aod we here adopt tke same rules with was necessary. The court said: '* A 
regard to such pleas, with the same general release, given after the corn- 
object. But when the matter of such mencement of an action, need not be 
a plea is in the first instance pleaded ^\t^i\^^ puis darrein continuance^ xltA^^^ 
in bar, before any other plea has been a plea has been before filed in the 
filed, we imagine that the plea may be action; nor need it be pleaded in bar 
in the form which has been adopted in of the further maintenance of the suit, 
this case. Iq such a case, we appre- but may be pleaded in bar generally, 
hend that the reasons upoa which the -Kimball v. Wilson, 3 N. H. 96; Austin 

ftl Volume XVIII. 



i 



r 



PlM. RELEASE. Aitogtttioiii of FlM. 

6. Supplemental Answer. — A release after the commence- 
I^ ment of an action may be set up by supplemental answer.^ 

c. Amended Answer. — A release given by a party after a 
judgment has been rendered and a review has been had in an 
appellate court may be set up in an amended answer, and advan- 
tage of it may be taken on a subsequent hearing in the court 
below.* 

3. Alle^tions of Plea — a. Averment of Consideration. — 
In pleading a release the defendant should set out the considera- 
tion therefor,' since a release must be founded upon some 
consideration.* 

6. Averment of Seal. — Where the action is on a sealed 
obligation, a plea of release should allege that the release is under 

V. HaH, 13 Johns. (N. Y.) 286; 5 Bac. brought before the court by a cross-biU 
Abr. 479; I Com. Dig., I, 24, p. 98. or supplemental answer, and could not 
And such a release may be pleaded in in that stage of the proceedings be no- 
bar, after the last continuance, with the ticed by the court in any other way. 
general issue, i Chitty's Pi. 542; i It is a sufficient answer to this objec- 
Tidd's Pr. 610; Everenden v. Beau- tion to say that it was admitted in evi- 
mont, 7 Mass. 76; Austin v. Hall, 13 dence without exception, and both 
Johns. (N. Y.) 286. In the present case parties treated it as properly in the 
the matter embraced in the second cause; and the complainant proceeded 
brief statement, being a general release to take testimony to show that it was 
and settlement of the action since the obtained from him by duress, and the 
last continuance, could have been defendants to show that it was freely 
pleaded with the general issue at the and voluntarily given. It had the 
time it was; and as it could then have same effect that it would have had 
been pleaded in bar with the general upon a cross-bill or supplemental an- 
issue, and no pleadings had been pre- swer, and the complainant had the same 
viously filed by the defendants, we opportunity of impeaching it. And 
think it comes within the provision of there is no propriety in requiring tech- 
the statute, and could properly be set nical and formal proceedings, when 
forth in a brief statement.'* they tend to embarrass and delay the 

1. Matthews v. Chicopee Mfg. Co., 3 administration of justice; unless they 

Robt. (N. Y.) 711. See also Mitchell v, are required by some fixed principles 

Allen, 25 Hun (N. Y.) 543; Smith wick of equity law or practice, which the 

V. Ward, 7 Jones L. (N. Car.) 64, 75 court would not be at liberty to disre- 

Am. Dec. 453. gard." 

BaleoMof Claim for Damaget. — In See- 8. Hennings v. Conner, 4 Bibb (Ky.) 

horn V. Big Meadows, etc., Wagon Road 299. 

Co.,6oCaI. 240, it was held that a release 8. Swan v. Benson, 31 Ark. 728; 

of a claim for damages pending suit Yanney v. Hine, 5 Ohio Cir. Dec. 301; 

should be allowed to be pleaded by Hale z/. Grogan, 99 Ky. 170; Maness Z7. 

supplemental answer. Henry, 96 Ala. 454; Roche v. Morgell, 

WaiTer of Olqaotion to Manner of Intro- 2 Sch. & Lef. 727; Brooks v. Sutton, L. 

duction.— In Kelsey v. Hobby, 16 Pet. R. 5 Eq. 361. 

(U. S.) 269, in which case a release ex- 4. Roche v. Morgell, 2 Sch. & Lef. 
ccuted after commencement of the suit 727; Brooks v. Sutton, L. R. 5 Eq. 361; 
was introduced, the court said: " Some i Dan. Ch. Pr. 669. 
objections have been made as to the Answer Demnrrable for Want of Avar- 
manner in which the release was in- ment. — An answer setting up a release 
troduced into the proceedings. It was of a lien for an annuity upon land 
filed in the cause, and a motion there- devised is demurrable w'ht^re it fails 
upon made to dismiss the bill; and it to aver or show any consideration, 
is said that, being executed while the especially where the said release was 
suit was pending, and afier the an- given to a person having no interest in 
swots were in, and the accounts before the lands. Yanney v. Hine, 5 Ohio 
the master, it should have been Cir. Dec. 301. 

02 Volume XVIII. 






Plaft. RELEASE. AUegatioxui nf Plea. 

seal ; * but in other actions such averment is not necessary,' 
becaiase a release ex vi termini imports a seal, and whether or not 
it hs^ a seal, if a seal is necessary, is a matter of evidence.*' 

r. Averment of Account Rendered and Payment Made. 

— It: is held that a plea of release to a bill for an account should 
conts^in an averment that an account has been rendered and pay- 
ment: made where those facts are denied in the bill, though the 
release recites an account and payment.* 

rfl Averment of Performance of Conditions of Execu- 
tory Contract. — In order that an executory contract for a 
release upon conditions may be a defense, performance of or readi- 

1. Griggst/.^oorhtes, 7Blackf. (Ind.) redemption in real estate to the plain« 

561, in which case the court said: tifT, and the acceptance thereof by the 

"The demurrer to the third plea was plaintiff as an accord and satisfaction, 

prop»erly sustained. The plea did not it is not necessary that the plea should 

show c Hat the release pleaded was un- allege that such release and quitclaim 

der sea.1. The debt pretended to be re- were under seal. Bailey v. Cowles. 86 

leased was due by an instrument under 111. 333. 

seal, a,nd it required a writing of equal 4. Fish v. Miller, 5 Paige (N. Y.) 26. 

dig nicy to release it. The weight of In this case the court said: ** The plea 

aatKority is to that effect. Co. Litt. appears to be defective in not averring 

^4; Sellers v. Bickford, 8 Taunt. 31, 4 that the defendant had accounted with 

^•^^- L. 8; Cord went v. Hunt, 8 Taunt, the complainant and paid him the 

\v^- -4- H). C.L. 216. " See also Gibson v. balance of such account. This is 

^"^■"w X J. J. Marsh. (Ky.) 446; Bender expressly denied in the bill, and is, 

*'-^^-*i^ pson, II Mass. 42. therefore, an impeachment of the 

. T" galley v. Cowles, 86 111. 333; whole consideration of the release. It 

« Cent. R. Co. v. Read, 37 111. is true the release recites, as facts, that 

^^ such account had been rendered and 

... • ^Hinois Cent. R. Co. v. Read, 37 such payment made; and if the facts 

'"- <4>34, which was an action on the were properly put in issue, and it 

^*\r? ^^^^ personal injuries. The court should turn out upon the proofs that 

*^*^ - *' We have looked into the books, the release was absolutely delivered, 

f^^ ^«n find no case wherein it has the release itself vr ould be prima /acu 

L "^ tfceld in pleading a release that it evidence of such facts. But the de- 

* r '^^'^ be averred it was under seal, fendant should have distinctly averred 

j^^^t^asc rx vi termini imports a seal, these facts in his plea, so that upon a 

jjjj^ * t is matter of evidence whether it replication to the plea the complainant 

gj^ ^ «k seal or not, if a seal be neces- might have had an opportunity of show- 

irs^^^^ The plea should have been ing that the allegations in his bill were 

j.g|^^^«^ed. The demurrer admits the true, notwithstanding these recitals in 

Q^^^c for a valuable consideration, the release. Upon a replication to a 

(^^^ "^tiis court said, in Benjamin v. Mc- plea, nothing is in issue except what is 

j,^T^**^ll, 9 111. 536, and we repeat distinctly averred in the plea; and if 

g,^^^* when a valuable consideration is that is established at the hearing, the 

pj.^*"^sscd in a release, or otherwise plea is an absolute bar to so much of 

^j^ '^''^d to have passed between the par- the bill as it professes to cover. It is 

jt^^». It U totally immaterial whether very evident that upon a replication to 

1^ ^^sirument is sealed or otherwise, this plea the truth of these recitals 

^,^ *^yan v. Dunlap, 17 111. 40, this would not be put in issue; but only the 

^*^ held that a release of a debt fact that the release contained such 



^^^ red by mortgage need not be un- recitals. And under such an issue, the 

^'iJ' seal, a fortiori^ it need not be, complainant would not be permitted to 

1 ^r« prosoective damages are re- introduce evidence to show that the re- 

^^ed." * citals were false." CiHng Allen v. 

^<!6uaand Qnltolaim of Equity of Bo- Randolph, 4 Johns. Ch. (N. Y.) 693; 

^IfUkptioiL — Where a defendant pleads Parkers. Alcock, i Y. & J. 432; Mitf. 

^release and quitclaim of his equity of PI. (Edwards's ed.) 262, 323. 

03 Volume XVUI. 



I 



Pte. RELEASE. striking Ont Fie*. 

ness to perform the prescribed conditions must be averred.* 

4. SeleaM to One Joint Trespasser. — Since co-trespassers are 
jointly as well as severally liable for the damages occasioned by 
their wrongful acts, a release of one or satisfaction received from 
one joint trespasser may be pleaded in an action to recover dam- 
ages for the trespass, and will be a conclusive answer to the suit.* 

5. Release by One of Seyeral Interested Parties. — A plea of a 
release made by one only of several beneficially interested parties, 
to one only of two defendants equally liable, is bad.' 

6. Demurrer to Plea. — If the matter specially pleaded by the 
defendant does not come within the legal description of a relcaise, 
the plaintiff should demur, as by replying and joining issue he 
admits the sufficiency in law of the matter.* 

7. Striking Out Plea on Oronnd of Collusion. — Where a release 
which was obtained by collusion or fraud is pleaded puis darrein 
continuance^ the court may, on application, strike such plea from 
the record, and may order the release to be given up for 
cancellation.* 

1. Gibbons v, Scott, 15 Cal. 285. liability on said replevin bond. This 

2. Slone v. Dickinson, 5 Allen (Mass.) plea, being one of puii darrein conHnu- 
29, 7 Allen (Mass.) 26; Brown v. Cam- ance^ was defective in form, and bein^ 
bridge, 3 Allen (Mass.) 474-. pleaded as a plea in bar, defective ia 

Pleading and Proof. — In an action substance. It averred a release made 

brought to recover damages for wrong- by one alone of three persons bene- 

fully causing the plaintiff to be arrested ficially interested, by one who was no 

upon a writ and imprisoned thereon in party to the record in any respect, and 

jail for a long space of time, an answer executed tooneonly of two defendants, 

which avers thatduringthe whole time equally liable." 

mentioned in the declaration the plain- 4. Blackburn v. Beall, 21 Md. 208. 
tiff was held in custody by the same 6. Innell v. Newman, 4 B. & Aid. 
officers who arrested and detained him 419, 6 E. C. L. 542. In this case a 
by order of divers other persons, and plea was struck from the recurd, and a 
hat such other persons have compen- release set up was canceled, when it 
sated and paid the plaintiff for said im- appeared that a husband had released 
prisonment, sets forth a full defense; a deed in an action in which he was 
and it is supported by proof that sev- joint plaintiff with his wife, who sued 
eral different creditors, of whom the as administratrix. The husband and 
defendant was one, caused the plaintiff wife were living separate under a deed 
to be arrested on their several writs, at by which the husband stipulated that 
the same time, by the same ofRcer, and his wife should enjoy as her separate 
to be committed co jail, where he was property alleffects which she might ac- 
confined upon all of the writs at the quire, and that he would ratify all law- 
same time, and that he executed to one ful proceedings to be brought in his or 
of such creditors a discharge under their names for recovering real and 
seal from all claims and demand for personal properly. 

false imprisonment by reason of the So where a landlord, with the per- 

arrest. Stone v. Dickinson, 5 Allen mission of the broker who had dis- 

(Mass.) 29, 7 Allen (Mass.) 26. trained on the goods of the lessee, 

8. Buckmaster v. Beames, 9 111 443. commenced in the broker's name an 

In this case the court said: " The first action against the sheriff for taking in- 

plea interposed by defendants avers sufficient sureties on a bond given by 

that Osborn, one of the defendants in the lessee, who had replevied, and the 

the replevin case, had, since the last broker afterwards, without the privity 

continuance of the present suit, re- of the landlord, released the bond, the 

leased defendant Beames (to the extent plea was set aside. Hickey .-'. Burt, 7 

of said Osborn's interest) from all Taunt. 48, 2 E. C. L. 48. See also 

94 Volume XVIII. 



Aaivtr in Bi^^ort of Ploft. RE LEA SE. Soplloation 

n. AmwZB IK Bttppoet of Plea. — Where fraud or other cir- 
cumstance is charged in the bill, to avoid a release the defendant 
pleading the release must, by proper negative averments in his 
plea, deny the allegations of fraud, etc., and must support his 
plea by a full answer and discovery as to every equitable circum- 
stance charged in the bill in avoidance of such release.* 

HI RSPLICATIOSr — 1. Heceflrity 0£ — Ai a General Bnle, where the 
defendant pleads a release by way of defense the plaintiff should 
controvert it in his reply.* 

ITjidar the Ptoyidoa of the Code that a reply is unnecessary unless 
the answer sets up a counterclaim, no reply need be filed to an 
insurer setting up a release.' 

i. IXrhsLt Matters Kay Be Beplied <- a. In General. — Where 
tie <ief endant sets up a release, it is proper to allege in the reply 
^^y matters which, if true, will avoid it, whether legal or 
^^quitable.* 

^- JNON Est Factum. — When a release is set up as a defense 
f^d i^ J5 intended to deny its execution, a reply of non est factum 
iP'"<^p>er, and a replication denying that the legal operation and 
.^^^t of the release are such as to discharge the defendant is 



^^ I *•-•* « ft Deed of Xelease Ii Kot Bet Out on Oyer, but is pleaded according 

(jj j^ ^ alleged legal effect, the replication of non est factum pmts 

^J^^^^ the alleged effect of the deed, as well "as its execution.^ 



y 



V^^ROCUREMENT OF RELEASE BY FRAUD — Propriety of Eeply. 

*Xere a party has released his cause of action, being influenced 

v^t^ V. Herbert, 7 Taunt. 421, 2 E. C. by fraud, although no replication is 

\ }gto, filed by him. Lyon v. Manning, 133 

^^trofig Case of Yraod Mut Be ICade Mass. 439. 

0iit— Unless, however, a very strong 4. Bean v. Western North Carolina 

case of fraud is made out, the court R. Co.. 107 N. Car. 731. 

will not control the legal power of a 5. Dennision v, Mudge, 4 Barb. (N. 

coplaintiff to execute a release. Jones Y.) 243. See also Walbourn v. Hing- 

V, Herbert, 7 Taunt. 421, 2 E. C. L. slon, 86 Hun (N. Y.) 63. 

420. 6. North V. Wakefield, 13 Q. B. 536. 

1. Bolton V, Gardner, 3 Paige (N. Y.) 66 E. C. L. 536. In this case the court 

273. See also generally article Pleas said: " We are of opinion that this rule 

IN Equity, vol. 16. pp. (xx^et seq, itit a nonsuit must be refused. The 

1 See Emerson v, Knower, 8 Pick, plea slated a release executed by the 

(Mass.) 63; Dennision v. Mudge, 4 plaintiffs to one Goddard, who joined 

fiarb. (N. Y.) 243. in the note on which the action was 

8. Dambman v. Schulting, 6 Thomp. brought, whereby the defendant was 

& C. (N. Y.) 251. See also O'Meara v. released. The plaintiffs replied non est 

Brooklyn City R. Co., 16 N. Y. App. /<jr/«»i, without setting out the deed on 

Dtv. 204, in which case the court cited oyer. It is clear that this replication 

Arthur r. Homestead F. Ins. Co., 78 put in issue, not only the execution of 

N. Y. 462. And see generally article the deed, but the construction of it as 

Replications AND Replies. alleged in the plea: it amounts to a 

In Kasiaclineetts, under the Practice denial that the plaintiff executed a deed 

Act, it has been held that In an action having such effect as there stated. 

upon a promissory note, if the answer Had the deed been set out on oyer it 

8tis up a release under seal, and the would have been otherwise, for then 

release Is put In evidence, the plaintiff the plea would be inconsistent in itself 

nay show that the release was obtained if the deed set out in it did not bear the 

05 Volume XVIII. 



Baplioatfon. 



RELEASE. What lUttm Xaj Be SepUad. 



thereto by fraud, he may sue on such cause of action at law 
without resorting to equity to cancel such release;* and if, in 
such action, the release is pleaded as a defense, the plaintiff may, 
in his reply, allege by way of avoidance the fact that it was 
obtained by fraud.* 

ATerment tliat DefandsEt Waa Party to Fraud. — A reply attempting to 
avoid a release on the ground that it was obtained by fraud, 



construction put on it by the other part 
of the plea, and so the objection would 
be raised on demurrer." See also 
Wilkinson z: Lindo, 7 M. & W. 81. 

1. Girard v. St. Louis Car- Wheel Co., 
46 Mo. App. 79. 

2. Girard v, St. Louis Car- Wheel Co., 
46 Mo. App. 79, 123 Mo. 358. See also 
Courtney v. Black well, (Mo. 1899) 51 
S. VV. Rep. 668; Bussian v. Milwaukee, 
etc., R. Co., 56 Wis. 325. Contra^ Han- 
cock V. Blackwell, 139 Mo. 440; Och v. 
Missouri, etc., R. Co., 130 Mo. 27. 

Baaort to Equity to Caneal Balaaaa Vn- 
naoaaaary. — In Girard v, St. Louis Car- 
Wheel Co., 46 Mo. App. 91, the court 
said: *' The proposition that a party 
who has been induced by fraud or un- 
due influence to release a right of 
action cannot sue directly at law upon 
the right of action thus released, but 
must first proceed in equity to avoid 
and cancel the release, is not, and 
never has been, the law. It is true 
that in Blair v, Chicago, etc., R. Co., 
89 ^[o. 383. there is this observation in 
the opinion of the court: * The release 
being valid, it was necessary that its 
bar be removed by appropriate proced* 
ure in order to the successful prosecu- 
tion of the action at law.' As the 
plaintiff in that case took the course 
indicated by the remark of the court, it 
was not necessary for the court to de- 
cide that it was necessary for her to do 
so. The remark is, therefore, a mere 
dictum. That it does not correctly ex- 
press the law is shown by the state- 
ment of Mr. Chitty in his work on 
pleadings, where he says that ' to a 
plea of release, he (the plaintiff) may 
reply non est factum^ or that it was ob- 
tained by duress or fraud, and it is un- 
necessary and injudicious to state the 
particulars of the fraud.' i Chitty on 
Pleading [leth Am. ed.] 608. While 
the last clause of this authoritative 
writer, that it is not necessary or judi- 
cious for the plaintiff in his reply to 
state the particulars of the fraud, was 
the rule of pleading at common law, 
yet it does not remain the rule of 



f leading under our code of procedure, 
n another place the same author gives 
the form of a reply of fraud, where the 
defendant had pleaded a release. 2 
Chitty 455. This rule of pleading was 
recognized in the opinions of the 
judges in Wild z/. Williams, 6 M. & W. 
490, where they refuse to strike out a 
^^9i puis darrein continuance^ setting up 
a release, on affidavits showing that the 
release was obtained by fraud, holding 
that the plaintiff could contest the plea 
on that ground under a replication set- 
ting up the fraud. That the plaintiff 
may, in an action at law, reply fraud 
to a plea or answer setting up a release 
of the cause of action, was held by the 
Supreme Court of New Hampshire in 
Webb V. Steele, 13 N. H. 230, and in 
Hoitt V. Holcomb, 23 N. H. 535, and 
by the Supreme Court of Illinois in 
Chicago, etc., R. Co. v, Lewis, 109 111. 
120, in both of which states the 
common-law svstcm of pleading is un- 
derstood to prevail. The same rule 
has been declared in Wisconsin (Bus- 
sian V, Milwaukee, etc., R. Co., 56 Wis. 
335), and infereniially in New York 
(Dixon V. Biooklyn City, etc., R. Co., 
100 N. Y. 170), in both of which states 
there is a system of code procedure 
similar to that which obtains with us. 
This court evidently took the same 
view of the question in Vautrain v. St. 
Louis, etc., R. Co., 8 Mo. App. 538, 
though the opinion is not very distinct 
on the point; and it is to be added that 
that case was affirmed by the Supreme 
Court on appeal (78 Mo. 44), although, 
without noticing the particular point. 
We, therefore, overrule this assignment 
of error " See also O'Donnell v. Clin- 
ton, 145 Mass. 461; Peterson v, Chi- 
cago, etc., R. Co., 38 Minn. 511; 
Lusted V, Chicago, etc., R. Co., 71 Wis 
391, Ryan v. Gross, C8 Md. 377. 

Oanaral Raplioation IiiaaAciant to Ad- 
mit Evidanea of Fraud. — Where the an- 
swer sets up a release as a defense to 
the matter stated in the bill, and the 
plaintiff replies generally, he cannot at 
the hearing read testimony impeaching 

96 Volume XVIIL 



^^I'^'Qatioi. RELEASE, What lUUan lUj B« SepUcd. 

iiere the fraud is alleged to have been perpetrated by a third 
^J^^n, must show either that it was done by the defendant's 
^Ority or that he was a party to it.* 

ay^' Circumstances Invalidating Release. — Although an 

ajjj^^T^ent against the express words of a written discharge is not 
Out ^^sible,* a replication to a plea of release is good where it sets 
tha^^ ^^e releasing instrument in hcec verbUy by which it appears 
tha^ ^l>e release was to be void in certain circumstances, and avers 

f^ circumstances.' 

^•^ Mistake of Parties. —According to some decisions, it 

''^\iv<\ seem that when a general release is pleaded as an affirmative 

^tlense to a cause of action, the plaintiff may show that by a 

mutual mistake of the parties, or a mistake on his part and fraud 

on the part of the defendant, the cause of action was included in 

the release, contrary to the agreement and intent of the parties, 

or, in case of fraud, contrary to his intent."* 

/. By Joint Plaintiffs Limiting Release to Separate 

Demand of One. — Where, in an action by partners for their 
joint demand, a release to a debtor of the finn signed by one 

the release as fraudulent. Wilson v. 8. Palmer v, Corbin, i. Root (Conn.) 

Wilson, 2 Dev. Eq. (N. Car.) 182, citing 271. In this case, which was an action 

James v, M'Kernon, 6 Johns. (N. y!) of trespass committed on land, the de- 

543; Lyon tr. Tallmadge, 14 Johns. (N. fendant pleaded in bar a discharge 

Y.)5oi. which was: " Sept. 13, 1790, received 

EapUcation of Fraud — Pleading and of Selah Corbin forty shillings in full 

Proot — Where in an action on a bond of all book accounts, and of all other 

a release from the obligee was pleaded, demands, from the beginning of the 

and the plaintiff replied setting up world to this day." The plaintiff re- 

fraod in obtaining the release, it was plied that he gave said discharge upon 

held that only fraud in the execution a settlement of their book accounts, 

of the release could be given in evi- and on a dispute they had respecting a 

dence, and not that it was given in steer; that the trespass complained of 

fraud of certain rights of the attorney was not thought of nor included in said 

of the plaintiff. Anderson v. Johnson, settlement or discharge, and was 

3Sandf. (N. Y.) i. wholly the interest of one Mr. Talbot. 

1. Meka v. Brown, 84 Iowa 711. In The reply was held insufficient. The 

this case a written contract of settle- words made use of in the discharge in- 

meot was set up as a defense, and the eluded this trespass, and an averment 

reply alleged that the plaintiff's signa- contrary to the words of the discharge 

tare thereto was fraudulently obtained was not admissible. 

by a third person. It was held that 8. Nevill v, Boyle, 11 M. & W. 26; 

such reply constituted no defense, in Hyde v. Watts, 12 M. & W. 254. 

the absence of any allegation that such 4. Kirchner v. New Home Sewing 

third person acted by the defendant's Mach. Co., 135 N. Y. 182. In this case 

authority, and that evidence as to the the court said: ** Generally speaking, 

alleged fraudulent acts of the third whatever proofs would l>e regarded as 

party were properly excluded. sufficient to enable the plaintiff to 

BMignation of Agents Making Frandn- maintain an action for the reformation 

Int Bepresentation. — A reply that the of the release, so as to except from its 

release was obtained through false and provisions the demand in suit, would 

fraudulent statements by the defend- be available to him in this action by 

ant's agents is insufficient because of way of avoidance of its terms. There 

its failure to designate the agents by are numerous cases in this court de- 

whom such fraudulent statement was termining when such an action will lie 

Oiade. The Oriental v. Barclay, 16 and what evidence is required to sup- 

Tex. Civ. App. 193. port it." Citing Bryce v, Lorillard r. 

|8 Encyc PI. & Pr. — 7 W Volume XVIH. 



Qaestloni for Jvixf. 



RELEASE. 



Queitioaf for Jnrj. 



partner is pleaded by way of defense, and the partners desire to 
show that such release was intended to apply only to the separate 
demand of the partner signing it, they should reply alleging this 
fact.* 

IV. QUESTIOVS FOB JVBT — Fraud or GoUniion. — Where a release 
has been pleaded, the question as to whether or not such release 
was voluntary, or was fraudulently or coUu^ively obtained, is for 
the jury.' 

Gapadty of Plaintiff to Szeoato. — Where a release of the plaintiff's 
claims has been pleaded in defense to the action, the question as 
to the plaintiff's mental capacity to execute the release is for the 
jury.' 



Ins. Co., 55 N. Y. 240; Maher v. 
Hibernia Ins. Co., 67 N. Y. 283; Paine 
V. Jones, 75 N. Y. 593; Kilmer v. Smith, 
77 N. Y. 226; Smith v. Truslow, 84 N. 
Y. 661; Albany City Sav. Inst. v. Bur- 
dick, 87 N. Y. 40. Sec also Walbourn 
V, Kingston, 86 Hun (N. Y.) 63. 

1. Emerson v, Knower, 8 Pick. 
(Mass.) 63. 



8. Eastman v. Wright, 6 Pick. 
(Mass.) 316; Loring V. Brackett, 3 Pick. 
(Mass.) 403; Girard v. St. Louis Car- 
Wheel Co., 46 Mo. App. 79; Julius V. 
Pittsburg, etc.. Traction Co., 184 Pa. 
St. 19. 

8. Gibson v. Western New York, etc., 
R. Co. , 164 Pa. St. 142. 

98 Volume XVIII. 



f 



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\ 



RELIEF. 

See articles DECREES, vol. 5, p. 946; JUDGMENTS, vol. 11, 
p. i<^\ PRAYERS FOR RELIEF, vol. 16, p. 774. 



RELIGIOUS SOCIETIES. 

By S. B. Fisher. 

I Actio VB bt Beligiovs Societies, ioo. 

I. Incorporated Societies y loo. 

a. Capacity to Sue^ loo. 

b. By Whom Brought^ loo. 

(^i\ Jn General^ loo. 

(2) One of Several Trustees^ loi. 

c. Use of Corporate Name^ loi. 

(i) In General^ loi. 

(2) Statutory Exceptions^ loi. 

(3) Misnomer — How Pleaded^ 102. 

d. Averment of Incorporation^ 102. 

e. Denial of Plaintiff* s Corporate Existence^ 102. 
i) Manner y 102. 

'2) Admission by Pleading Over to the Merits^ 103. 

\i) Effect of Denial^ 103. 
1. Unincorporated Societies^ 103. 
<?. Who May Maintain^ 103. 

(j^ In General^ 103. 

(2) Parties by Representation^ 103. 
^. The Complaint^ 104. 

U AoTioHs Agadtst Religious Societies, 104. 

I. Incorporated Societies^ 104. 

a. Use of Corporate Name^ 104. 

(i) General Rule^ 104. 

(2) Statutory Provisions^ 105. 

b, Senice of Process y 105. 

(i) Upon Whom Made^ 105. 
(2) Waiver^ 105. 
^. Averment of Corporate Existence^ 105. 



Ti) /« General^ 105. 



2) Objection for Want of Averment^ 105. 
</. Denial of Corporate Existence^ 106. 
2. Unincorporated Societies ^ 106. 

a. Against Whom Brought^ 106. 
--^ ^. Parties by Representation^ 106. 

^ lyjinrcTiov Agaivst Mibvse of Pbopsbtt, io6. 

99 Volume XVIII. 



AetloiiB by 



RELIGIOUS SOCIETIES. Bdigiou SooietiM. 



CROSS-REFERENCES. 

See generally article CORPORATIONS, vol. 5, p. 52; and as to 
matters of Substantive Law and Evidence^ consult American 
AND English ENCVCLOPiEDiA of Law (2d ed.), titles Z>E 
FACTO CORPORATIONS, vol. 8, p. 747, and RELIGIOUS 
SOCIETIES, 



I ACTiovs BT BsLioiovs Societies — 1. Incorporated Societies — 

a. Capacity to Sue — Suite by Corporatioiii De FMto. — In order to 
sue as a corporation it is not necessary that a religious society be 
a corporation dejure. It is sufficient, it seems, it it is a corpora- 
tion de facto y 

b. By Whom Brought — (i^ In General, — An action by an 
incorporated religious society should be brought by or through 
the board of trustees of such society, or by an agent appointed 
by the church or its board of trustees.* And it may be brought 
by trustees de facto ^ 

1. First Baptist Church v. Branham, force such an agreement specifically, it 

?> Cal. 22; Baltimore, etc., R. Co. v. is immaterial with whom the ag^ree- 
ifth Baptist Church, 137 U. S. 568; ment was made, and in that regard the 
West Koshkonong Congregation v. Ot- fact need not be proved as alleged; and 
tesen, 80 Wis. 62. it is not necessary to state the names 
In Baltimore, etc., R. Co. v. Fifth of such persons, as the agreement is 
Baptist Church, 137 U. S. 568, which enforceable in the corporate name, 
was an action of tort, it was held, upon Whitsitt v. Preemption Presb. Church, 
a plea of nul tiel corporation^ that evi- no 111. 125. In this case the court said: 
dence that the plaintiff, after filing '* The point is much pressed that the 
a defective certificate of incorporation proof does not support the allegations 
under a general corporation law, acted of the bill; that the bill alleges the 
for years as a corporation, and recov- agreement was made with William 
ered a judgment as such in a similar Hammond and others, and that there 
action against the defendant without should be strict proof of an agreement 
any objection made to its capacity to made with William Hammond and 
sue, was competent and sufficient to others, in which there is not only en- 
prove it a corporation de facto and tire failure, but that the name of Ham- 
therefore entitled to maintain the mond does not appear at all in any of 
action. the affairs in question until his election 
8. Drumheller v. First Universalist as one of the trustees, on June 2, 1880, 
Church, 45 Ind. 275; Leftwick v, at the legal organization of the re- 
Thornton, 18 Iowa 56; Humphrey v. ligious society. *  * Any agree- 
Burnside, 4 Bush (Ky.) 223; Stokes ment which was made here was made 
V, Phelps Mission, 47 Hun (N. Y.) 570; for the use and benefit of this Presby- 
Phipps V. Jones, 20 Pa. St 260, 59 Am. terian church, and these trustees who 



Dec. 708; German Evangelical Con- 
gregation V. Hoessli, 13 Wis. 348. See 
also Skinner v. Richardson, 76 Wis. 
464; Methodist Episcopal Church v, 
Sherman, 36 Wis. 404. 

Sidts by Tnuteet to Snforoe Contraets 
Made Prior to Organisation. — The 
trustees of an incorporated church, as 



bring this suit represent the interests 
of all the church members as to church 
property, and may enforce agreements 
made for the use and benefit of the so- 
ciety before its legal organization.*' 
8. First Baptist Church v, Branham, 
Cal. 22; Green v. Cady, 9 Wend. 
Y.) 414. In this case the court 



(S. 



the representatives of all the members said: *' Without inquiring whether this 
of a church, may, in the corporate religious society was duly incorporated 
name, enforce agreements made for the or not, I am of opinion that the plain- 
use and benefit of the society before its tiffs had sufficient possession of the 
legal organization. On a bill to en- meeting house to entitle them to maio 

100 Volume XVIII, 



JMm by RELIGIO US SOCIE TIES. BaUgiou SodetiM. 

(2) One of Several Trustees. — One of several trustees may sue 
in behalf of the society, where the society itself cannot bring the 
action because the act complained of is the act of other trustees,^ 

c. Use of Corporate Name — (i) In General. — As a general 
rule actions by incorporated religious societies should be brought 
in the corporate name of such societies, and not in the name of 
the trustees.* This is in accordance with the usual practice in 
actions by and against corporations.* 

(2) Statutory Exceptions. — By statute, however, in some states, 
a suit on behalf of a religious corporation is properly brought in 
the name of its trustees as such.* In order that the trustees 

tain trespass against the defendant. Use of Corporate Name by Corporation 
Admitting that they were not legally De Faoto. — The trustees of a religious 
trustees in pursuance of the provisions corporation de facto may sue in its 
of the act regulating the incorporation corporate name until its existence is 
of religious societies, 2 R. L. 212, they called in question by a direct proceed- 
Were trustees de facto , and as such had ing upon information of the attorney- 
possession of the house according to general. First Baptist Church t^. Bran- 
the fourth section of that act; and that ham, 90 Cal. 22. 

possession, being under color of right, Aotion by Tmiteee — Jadgment for Cor- 

was sQflBcient to entitle them to bring poratlon. — In an action brought by 

^sult against a trespasser.*' Citing trustees in their own names for the use 

People «r. Runkle, 9 Johns. (N, Y.) 147. of the corporation of which they are 

Suit by Offloers Hot £leeted ae ProTided officers, the court may render judgment 

••y I*w. — In West Koshkonong Con- for the corporation. Leftwick v. Thorn- 

^cgatioo V. Ottesen, 8oWis. 62, it was ton, 18 Iowa 56. 

^^W that for the purposes of an action 8. See article Corporations, vol. 5, 

g,^ the corporation to recover posses- p. 62. 

%v^ ^^ ^^^ property, it is immaterial 4. Indiana. — By statute a church or- 

iDEt its first meeting for the election of ganization can sue only in the name 

officers was not called in the manner of " wardens and vestrymen of 

provided by law. It is sufficient that church, ," or in the name of the 

it has officers de facto. "trusteesof church, ." Drum- 

1. Stokes V. Phelps Mission, 47 Hun heller v. Fii;st Universalist Church, 45 
(N. Y.) 570, wherein the court said: Ind. 275. See also Ham rick v. Bence, 
" That actions may under certain con- 29 Ind, 500; Wiles v. Philippi Church, 
ditions be brought upon behalf of a 63 Ind. 206. 

corporation by one of its ^ustees to re- Wisoonsin. — Where an action is 

dress wrongs done to the corporation brought by the trustees of a religious 

seems to be too well settled to require society, there being statutes under 

citation of authority, and that this right which such trustees could have been 

exists as well in respect to religious incorporated, it will be presumed that 

corporations as to civil corporations is they were incorporated and that they 

equally well settled." See also Berry* have legal capacity to sue. Skinner r. 

man v, Reese, 11 B. Mon. (Ky.) 287; Richardson, 76 Wis. 464. 

Associate Reformed Church v. Theo- Amendment by Substituting Proper 

logical Seminary, 4 N. J. Eq. 77. Vamei. — In Methodist Episcopal 

2. Leftwick?'. Thornton, 18 Iowa 56; Church v. Williamson, 7 Del. Co. Rep, 
First Baptist Church v. Branham, 90 (Pa.) 129, it was held that the complain- 
Cal. 22. See also Baltimore, etc.. R. ant in a bill filed in the name of the 
Co. V. Fifth Baptist Church, 137 U. S. Methodist Episcopal Church of the 
568. United States of America, which is a 

Aetion Againit Trustees. — An action body incapable of suinG^, would be per- 

to recover money due a church on a mitted to amend by substituting as 

verbal contract with its trustees should plaintiffs the names of the trustees of 

be brought in the corporate name and the particular church which was the 

not in the name of the trustees. Left- real plaintiff, where the defendants had 

wick V. Thornton, 18 Iowa 56. answered without objection. 

101 Volume XVIII. 



n 



\ 



I 

I 



Aotioni Wy kELlGlOUS SOCIETIES. Bdigiou Boeletiai. 



may maintain an action under such statute, it is not necessary 
that the right to the office of trustee shall first have been settled 
|i by quo warranto}- 

(3) Misnomer — Ho%v Pleaded, — In an action by a religious 
corporation, the misnomer of the plaintiff is pleadable in abate- 
ment only, and is waived by pleading to the merits.* 

d. Averment of Incorporation. — As to the necessity of 
the averment of incorporation, in an action by or against a 
religious society, the decisions are at variance as in the case of 
actions by or against other corporations.' Thus in some juris- 
dictions it is held that an averment of the corporate existence of 
religious societies is unnecessary.* In those states, however, 
where corporate existence must be alleged, such averment is 
necessary in an action by or against an incorporated religious 
i society.* 

f e. Denial of Plaintiff's Corporate Existence — (i) 

\ Manner. — As in the case of actions by other corporations, the 

authorities differ as to the manner of denying the corporate 
existence of the plaintiff in actions by religious societies.* 



1, Gaff V, Greer, 88 Ind, 122. Conference, 12 Barb. (N. Y.) 573; 

8. Baltimore, etc., R. Co. v. Fifth American Baptist Home Mission Soc. 

Baptist Church, 137 U. S. 568. See v. Foote, 52 Hun (N. Y.) 308. 
also Methodist Episcopal Church v, 6. See generally article Corpora- 

Tryon, i Den. (N. Y.) 451 ; Society, tions, vol. 5, p. T^ et seq. 
etc., V, Pawlet, 4 Pet. (U. S.) 501; By Plea in Abatemuit or in Bar. — In 

Christian Soc. v, Macomber, 3 Met. Methodist Episcopal Church v. Wood, 

(Mass.) 237; Gould's PI., c. 5, § 79. 5 Ohio 283, the court said: *' If the de- 

8. See article Corporations, vol. 5, fendant intended to object the want 

p. 70 et seq. of capacity in the plaintiffs to sue, 

4. Board of Domestic Missions v, he should have pleaded that matter 

Von Puechelstein, 27 N. J. Eq. 30; specially, in abatement or bar. He 

Zion Church c^. St. Peter^ Church, 5 has pleaded the g^eneral issue. This 

W. & S. (Pa.) 215, where the court said: admits the capacity of the plaintiffs to 

'* No precedent of an averment of in- sue in the corporate character they 

corporation or of a profert of the char- have described for themselves.*' Citing 

ter has been produced in any declara- Conard r*. Atlantic Ins. Co., i Pet. (IT. 

tion by a corporation; nor is there a S.) 386; Society, etc., v, Pawlet, 4 Pet, 

reason why there should be one. Un- (U. S.) 501; Com. v, Foster, i Mass. 

like a bond or a fcrant of administra- 488; Stafford v, Bolton, i B. & P. 40; i 

tion, it is no part of the title to sue, Saund. 340, note 2. 
any more than an act of baptism is part In Zion Church v. St. Peter's Church, 

of such a title. Nothing but a deed or 5 W. & S. (Pa.) 215, it was held that in 

grant of administration is pleaded with a suit by a religious corporation the 

a profert, and oyer cannot be de- want of a charter may be pleaded In 

manded of a private statute even when abatement, or perhaps in bar. See 

a profert has been made of it. The also, to the effect that nul tiel corpora^ 

name, in this instance, imports that tioti may be pleaded in abatement as 

the plaintiff is a body politic; and had well as in bar, Christian Soc. v. Ma- 

the fact been otherwise, the defendant comber, 3 Met. (Mass.) 235. 
might have pleaded the want of an act Under General bsne with Notice. — In 

of incorporation in abatement, or per- Christian Soc. v. Macomber, 3 Met. 

haps more properly in bar. But the (Mass.) 235, it was held that before the 

parties went to issue on another fact, statutes of 1836, c. 273, prohibited pleas 

and it was afterwards too late to in- in bar, nul tiel corporation might have 

quire into anything else." been pleaded in bar as well as in abate- 

6. Stoddard v. Onondaga Annual ment, and since the passing of that 

102 Volume XVIII. 



kMmm by RELIGIOUS SOCIETIES, Beligioiu Sooieties. 

(2) Admission by Pleading Over to the Merits, — In an action 
by a. religious corporation, if the defendant pleads over to the 
merits, he thereby admits the corporate existence of the plaintiff.* 

(3) Effect of Denial. — In an action brought by a religious 
society, the plaintiffs must prove their corporate existence if it is 
put in issue.* 

2. XJnincorporated Societies. (See also article Unincorporated 
Associations.) — a. Who May Maintain — (i) In General. — 

A suit in behalf of an unincorporated religious society may be 
maintained by the trustees thereof or by a committee appointed 
by tHe society.* 

(2) Parties by Representation. — In accordance with the rule in 
equity and under the code that where the parties are numerous, 
one or more of several interested persons may sue for all,* though 
the several members of a religious society may unite as plaintiffs,* 
one or more may prosecute an action for all the members as well 
as for themselves.'' 

statute, if the plaintiff sues as a cor- 482. See also Methodist Episcopal 

por&tion, and the defendant on plead- Church v. Tryon, i Den. (N. Y.)45i. 

^^S tlfte general issue gives notice, Evidence Snffleient to Proye De Facto 

conformably to the rule of court, that Corporation. — See Am. and Eng. Encyc. 

"^ ^v^ill deny that the plaintiffs are a of Law, titles De Facto Corporations, 

^^""P^^rsttion, they are bound to prove vol. 8, p. 747; Reli^ous Societies. 

r^T Corporate existence. 8. Whiter. Rice, 1 13 Mich. 403; Lilly 

^;^«iwlDenialIn«nificient.— In Wiles v. Tobbein, (Mo. 1890) 13 S. W, Rep. 

Jil^^^ilippi Church, 63 Ind. 206, it was 1060; Beatty v. Kurtz. 2 Pet (U. S.) 

^^^ >, ^liat the general denial does not 566; Callsen v, Hope, 75 Fed. Rep. 758. 

^v^^'^V issue the corporate existence of Compare Curd r. Wallace, 7 Dana (Ky.) 

^'^^ 'Vlaintiff. Citing Wert v. Craw- 190, 32 Am. Dec. 85, in which case it 

V^^^sirille, etc.. Turnpike Co., 19 Ind. was declared that at common law an 

242, Adams Express Co. v. Hill, 43 unincorporated religious society could 

Ind. 157, Indianapolis Furnace, etc., not sue in its aggregate name, or in 

Co. V. Herkimer, 46 Ind. 142. Presby- the names of its agents or trustees not 

terian Church v, Horton, 50 Ind. 223, vested with a right of property, but 

and Christian Church v. Johnson, 53 that by Act Ky. 18 14 the trustees of an 

Ind 273. See also Methodist Episco- unincorporated religious society in 

pal Church v. Wood, 5 Ohio 283. whom title is vested might sue in their 

General Issue Witfiout Notice, — If, own names for the safe keeping and 

in an action by a religious corporation, preservation thereof. 

the defendant pleads the general issue 4. Hadden v. Chorn, 8 B. Mon. (Ky.) 

without notice of his intention to deny 70; Humphrey v, Burnside, 4 Bush 

the corporate existence of the plaintiff, (Ky.) 215. 

he thereby admits the existence of the 6. See article Parties to Actions, 

corporation. Christian Soc. v. Macom- vol. 15, p. 627. 

ber, 3 Met. (Mass.) 235. 6. Methodist Episcopal Protestant 

1. Worrell v. First Presb. Church, 23 Church v, Adams, 4 Oregon 77. 

N. J. Eq. 96; Zion Church v, St. Peter's 7. Baker v, Ducker, 79 Cal. 365; Mc- 

Church. 5 W. & S. (Pa.) 215. Connell v. Gardner, i Morr. (Iowa) 272; 

O^eetion WaiTOd. — In Young Men's Fink v. Umscheid, 40 Kan. 271; Meth- 

Christian Assoc, t/. Dubach, 82 Mo. 475, odist Episcopal Protestant Church v. 

it was held that the question of legal Adams, 4 Oregon 77. 

capacity of the plaintiff to sue as a cor- Where there Is a Board of Tmitees. — 

poration must be raised by demurrer In Wheelock v. First Presb. Church, 

or answer, or it is waived. 119 Cal. 477, it was held that several of 

S* Methodist Episcopal Union Church the members of an unincorporated re- 

». Picket, 23 Barb. (N. Y.)436, 19 N. Y. ligious society may prosecute an action 

108 Volume XVIII. 



Atftloai Af ftlmt 



RELIGIO US SOCIE TIES. SeUgiou SooUtta. 



b. The Complaint — AUegaUoni ai to PtftiM. — Where part of the 
members of a religious society are suing for all, the 'petition 
should set forth facts justifying such course.* 

n ACTI0V8 AGAursT BELIGI0V8 S0CIITIS8 — 1. Incorporated 
Booitties — /7. Use of Corporate Name — (i) General RuU. 
— As in the case of other corporations,' an incorporated religious 
society must be sued in its corporate name,' and it has been held 
that a suit against the trustees of such a corporation individually, 
designating them as trustees of the corporation, omitting part of 
the corporate name, is not a suit against the corporate body, the 
designation superadded being merely descriptio persona.^ 

or all the members of the church as however, which should not be left to 

well as for themselves, even though inference." 

such society has a board of trustees. ftoAoiont ATennent of Oomnum or Oen- 

See also to the same effect Baker v. oral Intttreft. — In Baker v. Ducker, 79 

Ducker. 79 Cal.*365. Cal. 365. it was held that a complaint 

Where Property Hat Been Oiyen in averring that the plaintiffs, together 
Tmit for a church not incorporated, it with a large number of other persons, 
is competent for any person belonging were associated together for religious 
to that church, on behalf of himself and purposes, and were members of the 
of all others belonging to that churcH First Reformed Church of the city of 
and entitled to the use of the funds, to Stockton, and that the plaintiffs prose- 
come into a court of equity to enforce cuted the action for all the members of 
the execution of the trust. And if such the church as well as themselves, 
church consists of various congrega- showed the question to be one of com- 
tions, any one or more of such congre- mon or general interest of many per- 
gations, being incorporated, may in sons, and that the action was authorized 
like manner enforce the execution of by Code Civ. Pro. Cal., .§ 38a. 
the trust. Associate Reformed Church 8. See article Corporations, vol. 5, 
V, Theological Seminary, 4 N. J. Eq. 77. p. 62. 

1. McConnell v. Gardner, i Morr. 8. Tartar f. Gibbs, 24 Md. 323; Afri- 

(lowa) 272. In this case the court, in can Methodist Bethel Church v. Car> 

refusing to entertain a bill died by an mack, 2 Md. Ch. 143; Ladd v, Metho- 

elder of a church in his name and right dist Episcopal Church, i Mich. N. P. 

as an elder, to secure the title to a T43. 

church lot granted to the church of 4. Tartar v, Gibbs, 24 Md. 323. In 
which he was a member and elder, this case the court said: '* The defend- 
said: '* As a general rule, all the mem- ants, the appellants, are sued individ- 
bers of a voluntary association should ually, the designation ' trustees of the 
be joined in the petition, but to prevent African Methodist Episcopal Church ' 
the inconvenience and delay which superadded being a descripHo persona, 
such a requirement would occasion. This is not a mere misnomer, but suing 
where the members are numerous, them in a different capacity." 
courts of equity have of late counte- S^etltion of Fall Vame of OorporatioiL 
nanced the mode of a part commencing — In Antipoeda Baptist Church v. M ul- 
proceedings in behalf of all. But the ford, 8 N. J. L. 182, it is held that 
petition in such a case should set forth where the name of the corporation is 
facts to justify that course. In the correctly stated at the commencement 
present case it does not appear that the of the declaration, thus *' The Trustees 
number of associated members is so of the ABC of,'* etc., and in the sub- 
great as to create inconvenience in hav- sequent part of the declaration it is 
ing all their names joined. Nor is the alleged that " being so indebted they 
proceeding instituted by McConnell in the said trustees •   undertook 
behalf of the association, but for him- and promised,'* this is a suflBcient alle- 
self alone, although it would be reason* gation that the promise was made by 
able to infer that his success would the corporation, and not by the trustees 
redound to the exclusive benefit of the individually. It is not necessary to 
whole association. That is a matter, repeat the full name of the corporation 

104 Volume XVIII. 



Aaaanm Againrt RELIGIOUS SOCIETIES. BaUgiou SodetiM. 

(!2) Statutory Prmnsions, — By statute in some states incor- 
porated religious societies can sue only by their trustees and can 
be reached by suit only through their trustees ; as a church they 
cannot sue or be sued, but actions by or against them must be 
broug^lit by or against the trustees.* 

&. Service of Process — (i) Upon Whom Made. — Service of 
process in a suit against an incorporated religious society should 
be made upon the officers of such society who are de facto in 
possession of their offices, and a default based upon service made 
otherwise will be vacated.* 

(2) Waiver. — In an action against an incorporated religious 
society, a general appearance by the defendant constitutes a 
waiver of the issuance and service of the writ.^ 

<^-^ Averment OF Corporate Existence — (i) In General. — 

As in the case of actions against other corporations, the authori- 
ties differ as to the necessity of averring the corporate existence 
of a. religious society against which an action is brought.* 

C^) Objection for Want of Averment, — An objection that the 
^^^^<^T2X^ character of a defendant religious society does not 
sufficiently appear by the bill cannot avail at the final hearing.* 



at c«r 

j^f^ ^ry recurrence in the declaration; preachers, must be deemed for all the 

Q2i^'~^'^ce in a clear manner to the purposes of this motion as competent 

1^ ^^Iready given is sufficient. to appoint the trustees. And the 

8e^* jSc^^ Street M. E. Church v. Garn- trustees and officers appointed by them, 

unct^^^ 111. 132, which case was decided in conformity with the provisions of 

Co*!-^*" -Act 111, 1885, § 2. See also First the statute, and who have, in fact, 

Wi'Ii^^ Church v. Stswart, 43 111. 81; acted and are continuing to act as such, 

^ ^|| ^^ v. Methodist Episcopal Church, are at least trustees and officers de 

^^^ 55. facto; and on them alone, while such 

j^^>*^^ of Error in Suing Clivroh Instead a state of things exists, can a valid 

A ^t^^iftaet. — Advantage of an error service of process be made. How 

^^<^6e in suing a church as such, when, much a want of conformity in their 

^y statute, the suit should have been proceedings Co the discipline of the so- 

t>rought against its trustees, cannot be ciety may afifect the title of the acting 

taken on appeal when it has been over- trustees or their agents to their officers 

looked in the court below. Ada Street cannot be investigated on this motion.'* 

M. E. Church v. Garnsey, 66 111. 132. 3. Zion Church v. St. Peter's Church, 

8. Beriian v. Methodist Soc, (N. Y. 5 W. -& S. (Pa.) 215. 

Super. Ct. Spec. T.) 4 Abb. Pr. (N. Y.) 4. See article Corporations, vol. 5, 

434, in which case it was held that p. 70. 

where a suit is commenced by service Kame Importing Corporation. — It has 

upon parties claiming to be officers, been held that a religious corporation 

bat not in possession of the offices, may be declared against by the name 

upon motion of the officers de facto by which it is known, without alleging 

after judgment by default, all the pro- that it is chartered or incorporated, if 

ceedings roust be vacated as irregular, the description impliedly amounts to 

that the title of the acting trustees an allegation that the defendant is a 

cannot be investigated upon such mo- corporate body. Ladd v, Methodist 

tion, andihatif they are intruders, the Episcopal Church, i Mich. N. P. 47. 

court has no jurisdiction to determine 5. Worrell v. First Presb. Church, 23 

the question. The court said: "The N.J. Eq. 96. In this case the court 

persons who for over five years have said: '* Whatever force these objections 

net in the church edifice for worship, might have had at an earlier stage of 

M»e elected the officers of the society, the cause, they cannot avail now. The 

ttd appointed and supported its defective allegations of corporate char- 

106 Volume XVIII. 



?. 

% 



I 

I 



• • 



 

!l 



ti^uietlon Agftiait RELIGIOUS SOCIE TIES. WtuM of Prop«rit. 



d. Denial of Corporate Existence. — The general rule as 
i to the manner and effect of a denial of corporate existence in 

actions against corporations, applies in the case of actions against 
■j incorporated religious societies.* 

2. XTninoorporated Societies — a. AGAINST Whom Brought. — 

A religious society which is not incorporated according to law 

j cannot be sued as an organization.' It is not a person, and has 

no power either to sue or be sued.' But the members of such 
society are liable as joint promissors or partners on contracts made 
by them in its behalf,* and they may be sued collectively.* See 
also article UNINCORPORATED Associations. 
b. Parties by Representation — Oeneni Bnie. — Where the 

individual members of an unincorporated religious society are 
too numerous to admit of all being effectively brought before 
the court, one or more of them may be sued, and may defend for 
the whole.* 

lU Ik JTINCTIOV AGAIVBT Misuse of PbOPEXTT — PartlM PlalntUt 
— A part, and in fact, even a minority of the trustees of a 
religious society may move for an injunction against a diversion 
of the society's property to the use of any other society. And 
in a case where all of the trustees are engaged in such diversion 

acter and ecclesiastical rules have been v. St. Mark's Protestant Episcopal 

waived or substantially supplied by the Church, 52 Ga. 351. 

answer and proofs." 8. Burton v. Grand Rapids School 

1. See article Corporations, vol. 5, Furniture Co., 10 Tex. Civ. App. 270. 

p. 79. 4. Wilkins z/. St. Mark's Protestant 

Corporate Existenee Hot Put in Inne by Episcopal Church, 52 Ga. 351. 

GonezBl Denial. — As holding that a gen- 6. Keller v. Tracy, 11 Iowa 530; Bur- 

era! denial does not put in Issue the ton v. Grand Rapids School Furniture 

corporate existence of the defendant in Co., 10 Tex. Civ. App. 270. 

actions against a religious society, see 6. Wheelock v. First Presb. Church, 

Wiles V. Philippi Church, 63 Ind. 119 Cal. 477; Keller v, Tracy, 11 Iowa 

206. 530, in which case it was said: ** The 

Votioe of Intention to Deny Corporate church, if incorporated, should have 

Existenee. — In Massachusetts^ in an ac- been sued by its corporate name. If 

tion against a religious society de- not, the individual members of the 

scribed in the writ as* a body corporate church might have been sued col- 

for certain purposes," If the defendants lectively, or, under section 1680 of the 

would deny their existence or organiza- Code of 185 1, if they were too numer- 

tion as a corporation they must give ous and it was impracticable to bring 

notice of their intention to do so in a them all before the court, then one or 

specification of defense. Townsend v. more could have been sued, who conld 

First Freewill Baptist Church, 6 Cush. have defended for the whole, provided 

(Mass.) 279, the court saying: ** If the Tracy acted as their agent. In either 

defendants intended to deny their ex- event, whether against the corporation 

istence or their organization as a cor- as such, or against the individual mem- 

poration, they must have pleaded in bers of the church, the Catholic bishop 

abatement or in bar, under the old sys- holding the legal title should also have 

tern of pleading; and since the statute been made a party.^' 

abolishing special pleading, they must As to the general practice in the case 

give notice of their intention to do so of numerous parties plaintiff or de- 

in a specification of defense." fendant, see article Parties to Ac- 

8. Keller v, Tracy, 11 Iowa 530; Bur- tions, vol. 15, p. 727. 

ton V, Grand Rapids School Furniture Averment of Facta Jnsti^^ing Ominion 

Co., 10 Tex. Civ. App. 270; Wilkins of Parties. — Where a part of the mem- 

106 Volume XVIII. 



Iqjiutfitim Againit RELIGIOUS SOCIE TIES. XiivM of j^ropnty. 

or interference, any member of the church may institute the 
action, if not in the name of the corporation, at least in his own 
name for the benefit of all the members.* 

Action in Carponte Vune. — An action for an injunction to restrain 
interference with the management or control of the property of 
a religious society by persons wrongfully claiming to be trustees 
is properly brought by the trustees in their corporate name, and 
the state need not be a party.* 

bers of an anincorporated religious so- them all before the court. Wheelock 

^icty are sued for all. the plaintiff v. First Presb. Church, 119 Cal. 477. 

sboQ/d allege that all the members of 1. First Reformed Presb. Church v. 

"ich society have a common and per- Bowden, (Supm. Ct. Spec. T.) 10 Abb. 

^fia/ Interest in the cause, and also N. Cas. (N. Y.) i. 
(Aac 5y reason of their numbers it is 8. German Evangelical Congregation 

'<Qpi^cticable or inconvenient to bring v. Hoessli, 13 Wis. 348. 

107 Volume XVIII. 



REMAND. 

See article MANDATE AND PROCEEDINGS THEREON^ 
vol. 13, p. 835. 

REMEDY AT LAW. 

By S. B. Fisher. 

I As Ousting Jubisdictiov of Eaum, 109. 
IL AvsBMSNTs IV Bill as to iHABsauAor of Legal Bemedt, 109. 

1. Necessity of Averment y 109. 

2. Requisite Allegations^ no. 

a. In General^ no. 

b. Averment in Terms ^ no. 

m CEBTIFICATE of COimSEL AS TO iHABEaVAGT OF LEGAL REM- 
EBY, 1 10. 

IV. Oeheeal Bule as to Objectioe to JmusDiCTiON OF BaniTT, 

no. 

V. Nature of Objection, hi. 
YI Necessity of Baising Objection, hi. 

1. General Rule y in. 

2. Dismissal by Court Sua Sponte^ 112. 

vn. Time OF Baising Objection, 113. 
Yin. Hanneb of Baising Objection, i 16. 

1. By Demurrer^ 116. 

a. When Proper^ 1x6, 

b. Form of Demurrer y 117. 

2. By Answer^ 118. 

a. When Proper y it8. 

b. Effect of Objection^ 11^, 

3. By Motion to Transfer to Proper Docket ^ 119. 

IX. Waiyeb of Objection, i 19. 
X. Effect of Dismissal of Bill, 122. 

CROSS-REFERENCES, 

See generally articles in which subjects of equity jurisdiction are 
treated, such as CREDITORS* BILLS, vol. 5, p. 388; IN^ 
JUNCTIONS, vol. 10, p. 951; QUIETING TITLE, vol. 17, p. 
274; RESCISSION, REFORMATION, AND CANCELLA^ 
TION OF INSTRUMENTS; SPECIFIC PERFORM- 
ANCE; and the General Index of this work. And see the title 
EQUITY, n Am. and Eng. Encyc. of Law (2d ed.) iggetse^. 

108 Volume XVIII. 



AfmnU in BiU M to REMEDY AT LAW. , XnadequMy of Bomodj. 

I As OuSTlirG JURISDICTIOV OF EauiTT. — There are certain 
heads of equity jurisdiction which are dependent upon the want 
or inadequacy of legal remedies, and these heads are so numerous 
and of such importance that it is often broadly stated as a gene- 
ral rule that equity is without jurisdiction where there is an ade- 
quate remedy at law.* 

JviidiotioB Bepondont upon Btatnto. — In some states the jurisdiction 
of the courts as courts of equity is dependent upon statutes 
which limit the jurisdiction to those cases where there is not a 
plain, adequate, and complete remedy at law.* 

U Ayebmsnts in Bill as to Ihabequagy op Legal Bemebt 

— 1. Heoessity of Ayerment. — In order to give jurisdiction to a 
court of equity the plaintiff's bill must, in various classes of 
actions, show that there is no legal remedy, or that it is inadequate 
under the circumstances;* and in those states where the juris- 
diction of the courts as courts of equity is limited by statutes to 

!• Colton V, Price, 50 Ala. 424; show in bis complaint that he has not 

Curry ». Peebles, 83 Ala. 225: Wing- a full and adequate remedy at law. 

°^'d V. McLure, 48 Ark. 510; Derry v. Unless he can show that he has not 

^oss, 5 Colo. 295; Fort v. Groves. 29 such a remedy, either by appeal, cer- 

^<^» 188. See also for additional cases tiorari, application to the coart itself 

on this point the title Equity^ 11 Am. which rendered the judgment, or in 

and Eng. Encyc. of Law 199-202; and any other legal and adequate manner, 

'0 this work the articles Injunctions, he is not entitled to relief by injunc- 

•^*. 10, p. 953; Interpleader, vol. 11, tion." 

,1 "M-T, Judgments, vol. 11, pp. 1176, Veoesiity to Alloge InMlyeney. — This 

^; a.nd the General Index to this rule was applied and relief denied in 

^l^ Cummings v, Bradford, (Ky. 1895) 29 

Jirf ****• ^ SoiMdy Sols Toit of Sqiiitj S. W. Rep. 747, where there was a 

j^'^'^etioii. — In Watson v, Suther- remedy by action against an adminis- 

and^ 5 Wall. (U. S.) 74. which was a trator and his sureties on their bond, 

•I '^ ^*^r an injunction, it was said that and they were not alleged to be insolv- 

^Z^ a.bsence of a plain and adequate ent, or, if so, that a new bond could 

^^.^^3^ at law a£fords the only test of not be obtained at law. 

ijj^'^y jurisdiction, and the applica- Dismisial of Bill. — In Parker r. Win- 

^^ ^^t this principle to a particular nipiseogee Lake Cotton, etc., Co., 2 

^ ^tiust depend altogether upon the Black (U. S.) 545, the court affirmed a 

O^^^^^ter of the case as disclosed in the decree dismissing a bill for a private 

A^^^ings.'* nuisance in which the nature of the in- 

^ 9. Gordon v. Clapp, ill Mass. 22. jury was not set out in such a manner 

5ec also generally article Redemption, as to show that the plainti£f was with- 

vol. 17, p. 942. out a legal remedy. 

8. Colton V, Price, 50 Ala. 424; State OmiMion Oronnd for DemniTer. — In 

V, Mobile, 5 Port, (Ala.) 279; Wingfield Wingfield v. McLure, 48 Ark. 510, it 

r. McLure. 48 Ark. 510; Fort r. Groves, was held that a demurrer to a cpm- 

29 Md. 188; Eastman v, Amoskeag plaint on the ground that it failed to 

Mfg. Co., 47 N. H. 71; Parker v. Win- show that the plaintiff had no adequate 

nipiseogee Lake Cotton, etc., Co., 2 legal remedy was properly sustained. 

Black (U. S.) 545. See also articles lajimotioiif Against Kidtaneei. — In 

CuDiTORs' Bills, vol. 5, p. 562; In- the case of injunctions against 

JUNCTIONS, vol. 10, p. 953; Quieting nuisances the decisions seem to differ 

TiTLR, vol. 17, p. 274; Specific Per- as to the necessity of showing the want 

FORMANCE; and other articles treating of an adequate remedy at law. Thus 

^^^tobjects of equity jurisdiction. some of these decisions hold that this 

Iq Wingfield v. McLure, 48 Ark. 514, is essential, and that a bill may be dis* 

^hich was a proceeding for injunction, missed for its omission. Parker v, 

wc coart said: *' The appellant fails to Winnipiseogee Lake Cotton, etc., Co., 

" — ^ 109 Volume XVIII. 









Bvlt M to ObjMUon to REMEDY AT LAW. Jiuiidlotta if Ifid^. 

cases where there is not a plain, adequate, and complete remedy 
at law, the allegations of the bill must disclose that from the 
nature of the property, the peculiar relation of the parties, or the 
difficulty of ascertaining the amount to be paid or tendered, it is 
apparent that there is no plain, adequate remedy at law.* 

2. Bequifite Allegations — a. In General. — The rule requir- 
ing that it should be shown that no adequate legal remedy exists 
would seem to be sufficiently complied with where the bill states 
facts from which it appears that such is the case.' 

b. Averment in Terms. — Where the fact that the remedy 
at law is inadequate sufficiently appears from the bill, it is unnec- 
essary for it further to allege in terms the nonexistence of a 
legal remedy or its inadequacy.' 

m Cbxtifigats of CoinrssL as to Ihabsquact of Leoai. 

SXXSBT. — The statutes of some states expressly provide that in 
certain cases no bill in chancery shall be entertained unless the 
counsel filing it shall certify that in his opinion the case is of such 
a nature that no adequate remedy can be obtained at law, or that 
the remedy at law will be attended with great additional trouble, 
inconvenience, or delay.* 

lY. OSVEBAL BULS A8 TO OBJEGTIOV TO JlTBISDICTIOV OF BQITITT 
— Statement of Bole. — In accordance with the doctrine that the aid 
of equity may be invoked only where there is no adequate remedy 
at law,* a court of equity will not entertain or exercise jurisdic- 
tion where the party has a complete and adequate remedy at law 
when the objection to such jurisdiction is seasonably taken.* 

When Olqeetion ATallnble. — By an adequate remedy at law is meant 
" a remedy vested in the complainant to which he may at all 
times resort at his own option, fully and freely, without let or 
hindrance,"'' and the objection to the jurisdiction of the court 
for the reason that the plaintiff has an adequate remedy at law is 

3 Black (U. S.) 545. Other decisions Thomas v. Hall, 3 Pearson (Pa.) 64; 
hold that when an injunction is sought Everhart v. Everhart, 3 Kulp (Pa.) 59. 
to restrain the continuance of a No AppUeation to Settlement of Partner- 
nuisance, the petitioner need not, as a ship Aooonnts. ~ This rule is held in 
predicate to the relief he seeks, show Bach man v, Einhorn, 5 W. N. C. (Pa.) 
that he has no adequate remedy at law, 350, not to apply in the case of bills for 
and that the rule sought to be invoked the settlement of partnership accounts, 
has no application in such cases, an in- 5. See title Equity, it Am. and Eng. 
junction being the recognized method Encyc. of Law 199. 
of abating nuisances. International, 6. Kelley v. Kelley, 80 Wis. 486; 
etc., R. Co. V, Davis, (Tex. Civ. App. Shepherd v. Genung, 5 Wis. 3q7; 
1895) 39 S. W. Rep. 483. See generally Stroebe v. Fehl, 33 Wis. 337; Deery r. 
article Nuisances, vol. 14, p. iiss et seq. McClintock, 31 Wis. 195: Gunderson v. 

1. Gordon v, Clapp, iii Mass. 33, Cook, 33 Wis. 551; Gray v. Tyler, 40 

which was a bill for redemption. Wis. 579; McMillen v. Mason, 71 Wis. 

S. People V, Hilliard, 39 111. 413; 405. 

Hon V. State, 89 Ind. 350. 7. Wheeler v, Bedford, 54 Conn. 244. 

S. People V, Hilliard, 39 111. 413. For other definitions of adecjuate rem- 

4. See Act Pa. Oct. 13, 1840, Bright, edy at law see the title Equity, 11 Am. 

Purd. Dig. Laws Pa. (1894), p. 57; and Eng. Encyc. of Law 300. 

no Volume XVIU. 



Vooeiiit7 of REMED Y AT LA W. Suising Objection. 

available only where such remedy is as plain, adequate, and 
effectual as the remedy in equity.* 

V. Natttxe of Objectioh. — Although the objection that the 
plaintiff has an adequate remedy at law is usually regarded as 
affecting the jurisdiction,* there are decisions to the effect that 
this ground of refusal to take cognizance of a case and proceed 
with it is in no proper sense jurisdictional,' and that the rule is 
one of convenience.* 

VI VECE88ITT OF BAisiHe OBJECTION — 1. Oeueral Bnle. — It 
would seem to be the general rule that in an equitable action the 
objection that there is an adequate remedy at law must be raised 
by the defendant in his pleading in order to be available to him 
as a defense.* 

1. Boyce r. Grundy, 3 Pet. (U. S.) proper time and in the proper manner; 
215: Sullivan v. Portland, etc., R. Co., and although it is most frequently 
94 U. S. 806. citing Parker v. Winni- spoken of by courts and writers as a 
piseogee Lake Cotton, etc., Co., 2 question of jurisdiction, it is strictly 
Black (U. S.) 545. inaccurate to call it so. There is no 

" If tliA BoBsdy at Law Is SoubtAil or want of jurisdiction, and should the 

OlMQn, or if it falls short of correcting court erroneously proceed, after objec- 

the whole mischief, or of securing to tion properly taken, according to its 

the party asking relief his whole right, own rule, it is very clear that the judg- 

ia a perfect manner, this court must ment would not lie void. It might be 

retain jurisdiction in order that full erroneous and subject to reversal in 

and complete justice may be done, i a direct proceeding, but it could not 

Story's Eq. Jur., § 33." Chosen Free- be collaterally impeached or disre- 

bolders v, hfewark City Nat. Bank, 48 garded." Per Dixon, C. J., in Peck v. 

V. J. Eq. 51. School Dist. No. 4, 21 Wis. 523. 

OdBsnntiit Legal Samedy Kot BiifflelMit. 4. May v. Goodwin, 27 Ga. 352. 

— In Harper v. Rosenberger, 56 Mo. 5. Russell v. Loring, 3 Allen (Mass.) 

App. 388, it was held arguendo that the 121; Blair v. Chicago, etc., R. Co., 89 

test of right to equitable relief is not Mo. 388; Harper v. Rosenberger, 56 

whether there is a concurrent legal Mo. App. 388; Tulleys v. Keller, 45 

remedy, but whether the remedy at Neb. 220; Thomas v. Grand View 

law is adequate and complete. Beach R. Co,, 76 Hun (N. Y.) 601; 

2. Cummins v. White, 4 Blackf. Tucker v. Manhattan R. Co., 78 Hun 
(Ind.) 356; Keokuk, etc., R. Co. v, (N. Y.) 439; Lough v. Outerbridge, 143 
Donnell, 77 Iowa 221; Woodman v, N. Y. 271; Amis v. Myers, 16 How. (U. 
Freeman, 25 Me. 531; Gough v. Crane, S.) 492; Gage v, Lippman, (C. PI. Gen. 
3Md. Ch. 119; Drury w. Conner, I Har. T.) 12 Misc. (N. Y.) 93; Heyer r. 
&G. (Md.) 220; Atty.-Gen. If. Moliier, Burger, Hoflm. (N. Y.) i; Reilly v, 
26 Mich. 444; Humphreys v. Atlantic Freeman, i N. Y. App. Div. 560; Mentz 
Milling Co., 98 Mo. 542; Pittsburgh, v. Cook, 108 N. Y. 504; Baronv. Korn, 
etc.. Drove Yard Co.'s Appeal, 123 Pa. 127 N. Y. 224: Ketchum v, Depew, 81 
St. 250: Oelrichs V. Spain, 15 Wall. (U. Hun (N. Y.) 278; Ostrander ». Weber. 
S.)2ii; Parker v, Winnipiseogee Lake 114 N. Y. 95; O'Brien «/. McCarthy, 71 
Cotton, etc.. Co., 2 Black (U. S.) 545; Hun (N. Y.)427; Wilkeson Coal, etc., 
Damont sr. Fry, 12 Fed. Rep, 21; Lewis Co. v. Driver, 9 Wash. 177; Sweetser 
p. Cocks, 23 Wall. (U. S.) 466; Mills v. v. Silber, 87 Wis. 102; State v. Circuit 
Knapp, 39 Fed. Rep. 592; Sullivan v. Ct., 98 Wis. 143; Piers toff ». Jorge s, 86 
Portland, etc., R Co., 94 U. S. 806. Wis. 128; Pollock v. Farmers' L. & T. 

S. Oljeetioii Ko More than a Bole of Co., 157 U. S. 429; Post v. Corbin, 19 

PnetiM. — "The objection that the Fed. Cas. No. 11,299. 

plaintiff has an adequate remedy at It Is No Barrier to a Court of Equity 

law is no more than a rule of practice proceeding to grant relief in a cause, 

in the court of chancery upon which even if there be an adequate remedy at 

the action will be dismissed if the at- law, if the defendant does not plead a 

tenUon of the court is called to it at the remedy at law, for in such case the 

111 Volume XVIH. 



VMatiity «f 



REMEDY AT LAW. 



Bailing OlJMtin, 



2. DismiBsal by Court Boa Sponte. — Although the usual rule 
seems to be, as has just been stated, that the defendant must him- 
self raise the objection that there is an adequate remedy at law if 
he wishes to take advantage of it as a defense, and a failure to do 
this will be considered a waiver of the objection where the case 
is one in which a court of equity can aflford relief,* yet according 
to numerous decisions it is held that the objection, being one 
which affects the jurisdiction, may be raised by the court sua sponte 
though not raised by the pleadings or suggested by the defend- 
ant's counsel. There are numerous decisions to this effect in the 
United States courts * as well as in the courts of the various states.' 



court will go forward and afford relief 
in any cause of action, legal or equi- 
table. Blair v. Chicago, etc., R. Co., 89 
Mo. 3fi8. 

SnbmlMion to Jnrlidietion Withoat Ob- 
jection. — ** The Court of Chancery will 
not refuse to take jurisdiction of a case, 
and to maice a proper decree therein, 
merely upon the ground that the com- 
plainant had a perfect remedy by an 
9ction at law, when the parties have 
submitted themselves to tlie jurisdic- 
tion of the chancellor without objec- 
tion." Utica Bank v. Mersereau, 3 
Barb. Ch. (N. Y.) 574. 

Parties May Ament to AMumptioii of 
JoriBdictlon. — " It appears to be set- 
tled by a very general concurrence of 
authority that a defendant cannot, 
when sued in equity, avail himself of 
the defense that an adequate remedy 
at law exists unless he pleads that de- 
fense in his answer. Grandin v. Le 
Roy, 2 Paige (N. Y.) 509; Le Roy v, 
Platl, 4 Paige (N. Y.) 77; Truscott r. 
King, 6 N. Y. 147; Cox v, James, 45 
N. Y. 557; Green v, Milbank, (Supm. 
Ct. Spec. T.) 3 Abb. N. Cas. (N. Y.) 
138; Para V, Vilmar, (Supm. Ct. Spec. 
T.) 54 How. Pr. (N. Y.) 235. The rule 
proceeds upon the basis that parties 
may by their mutual assent litigate 
their differences in a court of equity, 
where the assent of the defendant, if 
withheld, might induce the court to 
refrain from the exercise of its jurisdic- 
tion. That jurisdiction existing over 
the general subject, the question of its 
exercise in the given case cannot be 
raised unless the answer raises it.'* 
Mentz V. Cook. 108 N. Y. 504. 

1. See infra^ IX. Waiver of Obje^ 
Hon. 

8. Oelrichs v. Spain, 15 Wall. (U. S.) 
211; Dumont v. Fry, 12 Fed. Rep. 21; 
Sullivan v, Portland, etc., R. Co., 94 
U. S. 806; Mills V. Knapp, 39 Fed. 

11 



Rep. 592; Spring v. Domestic Sewing 
Mach. Co., 13 Fed. Rep. 446; Hipp v. 
Babin. 19 How. (U. S.) 271. 

Deprivatioii of Conttitatioiial Eigbt to 
Jury Trial. — Whenever a court of law 
is competent to take cognisance of a 
right and has power to proceed to a 
judgment which affords a plain, ade- 
quate, and complete remedy, without 
the aid of a court of equity, the plain- 
tiff must proceed at law, because the 
defendant has a constitutional right to 
a trial by a jury. Hipp v. Babin, 19 
How. (U. S.) 271. See also Parker v, 
Winnipiseogee Lake Cotton, etc., Co., 
2 Black (U. S.) 545; Grand Chute v, 
Winegar, 15 Wall. (U. S.) 373; Lewis 
V. Cocks, 23 Wall. (U. S.) 466. And 
this objection to the jurisdiction may 
be enforced by the court sua sponte ^ 
though not raised by the pleadings 
or suggested by counsel. Parker v, 
Winnipiseogee Lake Cotton, etc., Co., 
2 Black (U. S.) 545; Lewis v. Cocks, 23 
Wall (U. S.) 466; Killian v, Ebbinghaus, 
110 U. S. 568. 

8. Hine v. Mew Haven, 40 Conn. 478; 
Hartford v. Chipman, 2Z Conn. 488; 
Cummins v. While, 4 Blackf. (Ind.) 
356; Dinwiddie v. Roberts, i Greene 
(Iowa) 363; Woodman ». Freeman, 25 
Me. 531; Gough z\ Crane, 3 Md. Ch. 
119; Crump V. IngersoU, 47 Minn. 179; 
Humphreys v, Atlantic Milling Co., 98 
Mo. 542; Hart v. Mallet, 2 Hayw. (N. 
Car.) 136. See also Kriechbaum v. 
Bridges, i Iowa 14. 

Diimlssal of Bill on Appeal. — In In- 
ternal Imp. Fund, etc., v. Gleason, 39 
Fla. 771, it was held that the appellate 
court will dismiss a bill in equity where 
there is an adequate remedy at law 
though the objection has not been 
raised See also Keokuk, etc., R. Co. 
V, Donnell, 77 Iowa 221; Pittsburgh, 
etc., Drove Yard Co. 's Appeal, 123 Pa, 
St. 250, 23 W. N. C. (Pa.) 89. 

3 Volume XVIII. ' 



i REMEDY AT LAW. Bftiriag oitfMiUa. 

Vhtf* tlw Bnljeatnmattflr of tlift Bill It Wholly Forelgm to the jurisdiction 
of a court of chancery, as, for example, a claim for damages or 
for an assault and battery, the court may properly dismiss the 
cause at any stage of the proceedings.* 

IKMrttiM of C^ttrt. — Where, however, the subject-matter belongs 
to the class over which a court of equity has jurisdiction, though 
the court may of its own motion make the objection after the 
defendant is barred by delay, whether it shall do so is dis- 
cretionary.* 

TH Tike of BAISINO OBJECtlOir — EarUett OpportUBltj. — With 

regard to the time when the objection that the plaintiff has an 
adequate remedy at law should be raised, it may be laid down as 
a general rule that such objection should be taken at the earliest 
opportunity' in the trial court.^ 

Beaton for Bvlo. — In its very nature the objection is of that class 
which ought to be taken in the earliest stages of the suit, before 
costs have accumulated, or by the lapse of time irreparable injury 
may result, by remitting the complainant to a legal remedy whicn 
has in fact become unavailing.* 

Objeetiaa Too Lata at Hoaring. — Where the defendant has, by his 
answer, put himself on the merits, and has failed to object on the 
ground of an adequate remedy at law, he cannot, according to 

Obm Xofluuidod by Sapremo Court. — In occasion, make and sustain the objec- 

Freeman v. Timanus, 12 Fla. 393, the tion; but that whether the court shall 

coart said: '* The appeal in this case do this is discretionary, and not im- 

bringing before this court the record peratiye. 

prior to the default, the bill is open for 8. May v. Goodwin, 27 Ga. 352; Bell 

oar iaspection, and if upon the face of v. McGrady, 32 Ga. 257; Johnson v, 

the bill there is no equity or there is a Miller, 50 111. App. 60; Western Elec- 

plain aod adequate remedy at law, the trie Co. v. Reedy, 66 Fed. Rep. 163; 

case must be remanded with directions Brown v. Lake Superior Iron Co., 134 

conformable to that view. It may be U. S. 530; Thompson v. Central Ohio 

nrged that, no such objection being R. Co., 6 Wall. (U. S.) 134; Kilbourn 

made in the pleadings or presented in v, Sunderland, 130 U. S. 505. 

the decree of the chancellor, this court Beforo Making Befonso. — In Kilbourn 

cannot consider them. Such, however, v, Sunderland, 130 U. S. 505, it was 

is the practice of appellate tribunals in held that where it is competent for a 

England, and such is the practice in court of equity to grant the relief asked 

the Supreme Court of the United for, and it has jurisdiction of the 

States." subject-matter, the objection that the 

1. Stout 9. Cook, 41 111. 447; Kimball plaintiff has an adequate remedy at law 

V' Walker, 30 111. 503; Deery v. Mc- should be taken at the earliest oppor- 

Clintock, 31 Wis. 195; Tenney v. State tunity, and before the defendants enter 

Bank, 20 Wis. 161; Remington v. Fos- upon a full defense, 

ler, 42 Wis. 608; Western Electric Co. 4. Mowry v. Hawkins, 57 Conn. 453; 

I'. Reedy, 66 Fed. Rep. 163; Lewis «/. Sexton v. Pike. 13 Ark. 193; I>odge ». 

Cocks, 23 Wall. (U. S.)466. Sec also Wright, 48 111. 384; Stout v. Cook, 41 

YuUon Irrigation Ditch Co. v. Twom- 111. 447; Magee v. Magee, 51 111. 500; 

b\y,6Colo. App. 554; Heyer v. Burger, Savery v. Browning, 18 Iowa 246; 

Hoffm. (N. Y.) I. Bomar v. Means, 47 S. Car. 190; 

9. BiMTBtioiuury with Court. -^ In Stonebunger v. Roller, (Va. 1896) 25 S. 

Western Electric Co. v. Reedy, 66 Fed. E. Rep. 1012; Preteca v. Maxwell Land 

Rep. 163, it was held that though the Grant Co., 50 Fed. Rep. 674. 

defendant is barred by delay, the court 5. Pfr Brickell, C. J., in Tubb u. 

Baj, of Its own motion, upon proper Fort, 58 Ala. 977. 

18 Encyc. PI. & Pr. — 8 118 Volume XVIH. 



TiflM of 



REMEDY AT LAW. 



Baising Oljwtloa. 



the weight of authority, insist on it at the hearing,^ unless the 

1. Arkansas, — CockreU v, Warner, agreed is a waiver of objections to the 
14 Ark. 345. form of proceeding, unless such objec- 

Connecticut, — Niles v, Williams, 24 tions are expressly reserved; and the 



Conn. 279. 

Georgia, — May v, Goodwin, 27 Ga. 
352; Bell V, McGrady, 32 Ga. 257. 

Illinois, — Stout v. Cook, 41 111. 447; 
Magee v, Magee, 51 111. 500; Turpin v, 
Dennis, 139 111. 274; Harding z/. Olson, 
76 111. App. 475; Ryan v, Duncan, 88 
111. 144. 

Massachusetts. — Clark v. Flint, 22 
Pick. (Mass.) 231; First Cong. Soc. v. 



objection that the plaintiff has a plain, 
adequate, and complete remedy at law 
cannot be raised for the first time on 
the final hearing, on facts agreed, 
when not stated in any of the plead- 
ings. Russell {'. Loring, 3 Allen 
(Mass.) 121. See also Meux v, Anthony, 
II Ark. 423, in which case it was held 
that a defendant in chancery, by a res- 
ervation of his objection to the juris- 



Trustees, 23 Pick. (Mass.) 148; Crocker diction in his answer, might have the 

V. Dillon, 133 Mass. 91 ; Page z^. Young, same benefit thereof as if he had 

106 Mass. 313; Massachusetts Hospital adopted the more concise mode of de- 

V, State Mut. L. Assur. Co., 4 Gray fense by pleading or demurring. 



(Mass.) 227; Jones v. Keen, 115 Mass. 
170; Dearth v. Hide, etc., Nat. Bank, 
100 Mass. 540. 

Michigan. — Stockton v, Williams, 
Walk. (Mich.) 120. 

Mississippi. — Cable v, Martin, i 
How. (Miss.) 558. 

New York. — Livingston v. Living- 
ston, 4 Johns. Ch. (N. Y.) 290; Under- 
bill V. Van Cortlandt, 2 Johns. Ch. (N. 
Y.) 339; Atty.-Gen. v. Purmort, 5 Paige 
(N. Y.) 620; Bradley v. Root, 5 Paige 
(N. Y.) 632: Wolcott V. Sullivan, 6 



Contra — Ol^ection Available at Any 
Stage. — In Baker v. Biddle, i Baldw. 
(U. S.) 394, 2 Fed. Cas. No. 764, it was 
held that an objection of there being 
an adequate remedy at law need not be 
made by demurrer, plea, or answer, 
but may be made at the hearing or on 
appeal. In this case the court said: 
** We must * »  take the law of 
equity to be settled that a defendant 
may, at any stage of the cause, rely 
on the Want of equity in the bill on 
the ground that the plaintiff has a com- 
Paige (N. Y.) 117; Gable v. Miller, 10 plete remedy at law." See also, to 
Paige (N. Y.) 627. the same effect, Pierpont v. Fowle, 2 

Pennsylvania. — Harrington v. Flor- Woodb. & M. (U. S.) 23, 19 Fed. Cas. 
ence Oil Co., 178 Pa. St. 444; Evans v. No. 11. 152. 



Goodwin, 132 Pa. St. 136; Searight v. 
Carlisle Deposit Bank, 162 Pa. St. 504. 

United States. — Consolidated Roller- 
Mill Co. V. Coombs, 39 Fed. Rep. 25; 
Kilbourn v. Sunderland, 130 U. S. 505; 
Waite V. O'Neil, 72 Fed. Rep. 348; 
Post V. Corbin, 19 Fed. Cas. No. 11,299. 

In Doubtful Cases. — In Evans v. 
Goodwin, 132 Pa. St. 143, it was said: 



Motion at Hearing. — In Daniels v. 
Street, 15 Ark. 307, it was held, ap- 
parently, that the defendant may object 
at the hearing if the want of jurisdic- 
tion appears from the proofs. See also 
Price V. State Bank, 14 Ark. 55; Cock- 
reU V. Warner, 14 Ark. 354. 

Olgection Saised at Hearing — Constme- 
tion of Bill. — In Zimmerman v. Car- 



It is too late now for the defendant penter, 84 Fed. Rep. 747, it was held 



to urge that an adequate remedy at law 
existed. Sunbury, etc., R. Co. v. 
Cooper, 33 Pa. St. 278. The doctrine 
laid down in Adams's Appeal, 113 Pa. 
St. 449, may be adopted here. While 
it is true that manifest want of jurisdic 



that if at the hearing the defendant 
raises the objection that a speedy and 
adequate remedy exists at law, the 
court will not make a decree if there 
is a plain defect of jurisdiction; but 
that in such case the court will con- 



tion may be taken advantage of at any strue the bill more liberally than if the 

stage^ of the cause, the court will not point had been raised by demurrer, 

permit an objection to its jurisdiction Findings of Fact — Adequate Remedy at 

to prevail in doubtful cases after the Law. — In Brewster v. Colegrove, 46 

parties have voluntarily proceeded to a Conn. 105, it was held that where the 

hearing on the merits, but will admin- allegations of a bill in equity are suffi- 

ister suitable relief." dent to give jurisdiction to a court of 

OlgeotionNotEzpressly Baserved. — An equity, and the case goes to a hearing 

agreement by the parties to a suit in upon its merits, and the facts are 

e<}uity to submit the case on facts found, the jurisdiction is not defeated 

lU Volume XVIIL 



Tta« of REM ED Y AT LA W. Baldng Oldaotion. 

court is wholly incompetent to grant the relief sought by the bill.* 

Court EaTiag Law uid Equity Jnriadietion. — This is the rule in chan- 
cery, and it applies a fortiori where the same court combines both 
law and equity jurisdiction ; * and where the defendant goes to 
trial on the merits in such courts it is too late afterwards to object 
that the plaintiff has an adequate remedy at law.' 

OlgeeUoii Vot Available by Motion to IMfmiu. — The question cannot be 
raised at the trial by a motion to dismiss.* 

Oljootion Too Lata After Teetimony Taken. — Where the defendant 
neglects until after the testimony in the cause is in, to object to 
the jurisdiction of the court on the ground that the complainant 
has an adequate remedy at law, the objection comes too late.* 

Olgeetioa Too Late on Appeal. — Except in those cases where the 
subject-matter is wholly foreign to the jurisdiction of the court, 
and incapable of being brought before it, even by consent, the 
objection that there is an adequate remedy at law must be insisted 
upon in the court below and cannot be made for the first time 
on appeal.* Whenever this objection is raised for the first time on 

by the fact that the finding shows that 8. St. Paul, etc., R. Co. v. Robinson, 

the petitioner had an adequate remedy 41 Minn. 394. 

at law. 8. St. Paul, etc., R, Co. v. Robinson, 

1. Cockrell v, Warner, 14 Ark. 345; 41 Minn. 394; Newton v, Newton, 46 

Clark V. Flint, 22 Pick. (Mass.) 231; Minn. 33; Sherwin v. Gaghagen, 39 

Harrington v. Florence Oil Co., 178 Neb. 238; Baron v. Korn, 127 N. Y. 

Pa. St. 444; Consolidated Roller-Mill 224; Watts v, Adler, 130 N. Y. 646, 41 

Co. V. Coombs, 39 Fed. Rep. 25. N. Y. St. Rep. 325; Mentz 7/. Cook. 

Too Late After Answer and General 108 N. Y. 504; Ostranderz'. Weber, 114 

BopUoation. — After an answer to a bill N. Y. 95; Hyatt v, Ingalls, 124 N. Y. 

in equity and a general replication have 93; Nicholson v. Pirn, 5 Ohio Sl 25; 

been filed, and evidence has been Kitcherside v. Myers, 10 Oregon 21; 

taken, and the cause has come on for O'Hara v, Paiker, 27 Oregon 156; 

hearing, it is too late to object to the Meyer v. Garthwaite, 92 Wis. 571. 

jurisdiction of the court on the ground 4. Wilkeson Coal, etc., Co. v. Driver, 

that the plalnti£f has an adequate rem- 9 Wash. 177. 

edy at law, provided it is competent to 5. Dodge v. Wright, 48 111. 382; 

the court to grant relief and it has Hickey v, Forristal, 49 111. 255; Cum- 

jurisdiction of the subject-matter, ming v, Brooklyn, 11 Paige (N. Y.) 

Clark F. Flint, 22 Pick. (Mass.) 231. 596; Shillito v. Shillito, 160 Pa. St. 167 ; 

In this case the court said: " This Searight v. Carlisle Deposit Bank, 162 

seems to be a reasonable rule, for after Pa. St. 504; Dederick v, Yqtl^ 56 Fed. 

the defendants had answered to the Rep. 714. 

merits of the bill, and consequently 6. Alabama, — Tubb v. Fort, 58 Ala. 
great expenses had been incurred, it 278; Norton.v. Norton, 94 Ala. 481. 
would seem to be unreasonable to Arkansas, — Sexton v. Pike, 13 Ark. 
allow them to interpose with an objec- 193; Moss v, Adams, 32 Ark. 562; Tal- 
tion which ought to have been made bot v, Wilkins, 31 Ark. 411; Daniels v. 
on demurrer to the bill, and before Street, 15 Ark. 307; Mooney v. Brink- 
answering to the merits. Under such ley, 17 Ark. 340; King v. Payan, 18 
circumstances a court of equity ought Ark. 583. 

to reuin the cause, provided it be com- Colorado, — Strousse v. Clear Creek 

petent to grant relief and have juris- County Bank, 9 Colo. App. 478. 

diction of the subject-matter." Citing Connecticut, — HUes v, Williams, 24 

Ludlow V, Simond, 2 Cai. Cas. (N. Y.) Conn. 284. 

56; Underbill v. Van Cortlandt, 2 Florida, — Griffin v, Orman, 9 Fla. 

Johns. Ch. (N. Y.) 369; M' Donald v. 22; Gordon v, Clarke, 10 Fla. 179. 

Crockett, 2 McCord Eq. (S. Car.) 135. Illinois. — Dodge v, Wright, 48 lU. 

U6 Volume ^VU(. 



llttUMr if 



REMEDY AT LAW. 



Baiiiiig Ol^aillCB. 



appeal, the court wUl lay hold of any vestige of chancery jurisdic- 
tion before it will dismiss the cause and send the plaintiff to begin 
anew in a court of law.^ 

Vm MijnrxB of BAisnrQ Obtsotiov — L By Denrairer — 
a. When Proper. — If it appears from the face of the bill or 
complaint that the plaintiff can have as effectual and complete 

384; Schmohl V, Fiddick, 34 III. App. New York, — Clarke r. Sawyer, 2 

190; Darby v. Dixon, 4 111. App. 187; N. Y. 498; Bruce v, Kelly, 39 N. Y. 

Soldiers* Orphans' Home v. Lyon, 42 Super. Ct. 27; Wiswrall r. Hall, 3 Paige 

111. App. 615; Anderson ». Montgom- (N. Y.) 313; Livingston v. Livingston, 

ery, 47 III. App. 79; Stout v. Cook, 41 4 Johns. Ch. (N. Y.) 290; Utica Bank 

111. 447; Magee v. Magee, 51 111. 500; r. Utica, 4 Paige (N. Y.) 399; Cunning- 

Turpin r. Dennis, 139 111. 274; Pretty- ham r. Fitzgerald, 138N. Y. 165; Utica 

man v. Irwin, 29 111. App. 122; Hickey Bank v. Mersereaa, 3 Barb. Ch.<N. Y.) 

V. Forristal,49lll. 255; Darby v. Dixon, 533; Steffin v. Steffi n, (Supm. Ct. Gen. 

4 111. App. 187; Hay v, Bennett. 153 T.) 4 Civ. Pro. (N. Y.) 179; Wakenxan 

111. 271; Roche V, Norfleet, 63 111. App. v. Wilbur, 147 N. Y. 657; Wltherbee v 

612: JolietGasLightCo.v. Sutherland, Meyer, 84 Hun (N. Y.) 146; Post n. 

68 111. App. 230; Baker v. Baker, 69 Ketchum, I N. Y. Leg. Obs. 261; Met- 

III. App. 461; Black V. Miller, 71 111. ropolitan £1, R. Co. v. Johnston, 84 



App. 342; Hazte v, Bondy. 173 III. 302; 
Ohiing V, Luitjens, 32 111. 28; Kimball 
V. Walker, 30 III. 503; Vermont v. 
Miller, 161 III. 210. 



Hun (N. Y.) 83; Powell v. Waldron, 89 
N. Y. 332. 

North Carolina. — Burroughs v, Mc- 
Neill, 2 Dev. & B. Eq. (N. Car.) 



Iowa, — Tugel v. Tugel, 38 Iowa 349; 297. 

Phinny zr. Warren, 52 Iowa 332; Gould Ohio, — Culver v, Rodgers, 33 Ohio 

V. Hurto, 61 Iowa 45; Hintrager v, St. 537. 

Sumbargo, 54 Iowa 604; Linden v, Oregon, — O'Hara p. Parker, 27 Ore- 
Green, 81 Iowa 366; Benjamin e^. Vieth, gon 156; Kitcherside v, Myers, 10 Ore- 
80 Iowa I49j^ Corey v, Sherman, 96 gon 23. 



Iowa 114: O'Brien v. Putney, 55 Iowa 
295; Savery v. Browning, 18 Iowa 
246; Matter of Knapp, loi Iowa 488; 
Logan V, McCahan, 102 Iowa 241; 
Adams County v. Hunter, 78 Iowa 328; 
Bull V, Keenan, 100 Iowa 144. 

Maryland, — Gough v. Manning, 26 
Md. 347. 

Massathusetts, — Clark v, Flint, 22 
Pick. (Mass.) 237; Creely v. Bay Stale 
Brick Co., 103 Mass. 515; Dearth v. 
Hide, etc., Nat. Bank, 100 Mass. 540; 
Russell V, Loring, 3 Allen (Mass.) 125; 



Pennsylvania, — Evans v, Goodwin, 
132 Pa. St. 136; Searight v, Carlisle 
Deposit Bank, 162 Pa. St. 504. 

Tennessee, — Stockley v, Rowley, 2 
Head (Tenn.)493. 

Washington. — Morgan v. Bell, 3 
Wash. 554. 

Wisconsin, — Ellis v, Allen, 99 Wis. 
598; J[ones V. Collins, 16 Wis. 594. 

United States, — Lone Jack Min. Co, 
V, Megglnson, 82 Fed. Rep. 89; Rey- 
nolds V, Watkins, 60 Fed. Rep. 824; 
Fisher v. Knight, 61 Fed. Rep. 491; 



Page V, Young, 106 Mass. 313; Jones Foltz v. St. Louis, etc., R. Co., 60 Fed. 

V. Keen, 115 Mass. 170; Crocker v. Rep. 316; Preteca v. Maxwell Land 

Dillon, 133 Mass. 91. Grant Co., 50 Fed. Rep. 674; Wylie 

Michigan. — Stockton v, Williams, v, Coxe, 15 How. (U. S.) 415; Boyce v. 

Walk. (Mich.) 120; Wallace v. Harris, Grundy. 3 Pet. (U. S.) 210; Kilbonrn v, 

32 Mich. 380. Sunderland. 130 U. S. 505; Oelrichs 

Mississippi. — Barrett r. Carter, 69 r. Spain, 15 Wall. (U. S.) 211 ; Brown 

Miss. 593. c/. Lake Superior Iron Co., 134 U. S. 

Missouri, — Blair v, Chicago, etc., 530; Allen v, Pullman's Palace Car 
R. Co., 89 Mo. 383. 



Nebraska. — Stahlhut v. Bauer, 51 



Co., 139 U. S. 658; Amis v, Myers, 16 
How. (U. S.) 492; Tyler v. Savage, 143 



Neb. 64; Morris v. Haas, 54 Neb. 579; U. S. 79; Reynes r. Dumont, 130 U. S. 

Sherwin v. Gaghagen, 39 Neb. 238; 354; Crosby i'. Buchanan, 23 Wall. (U. 

Dorsey v, Nichols, 43 Neb. 241. S.) 420; Union Pac. R. Co. v, Harris, 

New Jersey, — Bates v. Conrow, 11 63 Fed. Rep. 800; HoIIins v, Brierfield 

N. J. Eq. 137; Lehigh Zinc, etc., Co. Coal, etc., Co., 150 U. S. 371. 
V. Trotter, 43 N. J. Eq. 185. 1. Daniels v. Street. 15 Ark. 307. 

lie Volume XVIII. 



Xmmt «f REMEDY AT LAW. Baising oibjMtlM. 

a remedy at law as in a court of equity, and that such remedy is 
dear and certain, tlie defendant may raise the objection by a 
demurrer.* 

*. Form of Demurrer. — A demurrer on the ground of 

insufficient facts is sufficient to raise the objection that there is 
an adequate remedy at law.* 

Demurrer Qrt Team Inenileieat. — The objection to the jurisdiction 
of a court of equity on the ground that the plaintiff has an 

adequate remedy at law cannot be raised by a demurrer ore ienus 

1. Alabama, — Tubb v. Fort, 58 AU. (N. Y.) 632; Grandin r. Lc Roy, a 

278; Norton r. Norton, 94 Ala. 481; Paige (N. Y.) 509. 

Bunn V. Timberlake, 104 Ala. 263. North Carolina, — Smith v. More- 

Arkansas. — Price v. State Bank, 14 head, 6 Jones Eq. (N. Car.) 360. 

Ark. 50. Ohio, — Culver v, Rodgers, 33 Ohio 

Cmn^cficut. — Munson r. Manson, 30 St. 537; Nicholson v. Pirn, 5 Oliio St. 25. 

Coon. 425; New-London Bank v. Lee, Orrgon. ^^ O* HsitB, v, Parker, 27 Ore- 

II Conn. 112; Stannard v, Whittlesey, gon 156. 

9 Conn. 556; Norwich, etc., R. Co. v, Pennsylvania, — Harrington v, Flor- 

Storey, 17 Conn. 364; Salem, etc., cnce Oil Co., 178 Pa. St. 444. 

Tanipike Co. v, Lynn, 18 Conn. 451; Tennessee, — Caldwell r. Knott, 10 

Brewster v, Colegrove, 46 Conn. X05; Ycrg. (Tenn.) 209. 

Mowry v. Hawkins, 57 Conn. 453. Vermont, — Bellows Falls Bank v. 

Georgia. — May v. Goodwin, 27 Ga. Rutland, etc.. R. Co., 28 Vt. 470. 

352; Bell r. McGrady, 32 Ga. 257. Virginia. — Washington City Sav. 

Illinois, — Stout v. Cook, 41 111. 447; Bank v. Thornton, 83 Va. 157. 

Tutpin V. Dennis, 139 111. 274; Monson Wisconsin. — Peck v. School Dist. 

r. Bragdon, 159 111. 61; Dodge v. No. 4, 21 Wis. 523; Gullickson v, 

Wright, 48 111. 384: Magee v. Magce, Madsen, 87 Wis. 19; Tenney v. State 

51 111. 500; Ryan v. Duncan, 88 III. Bank, 20 Wis. i6i; Kelley r. Kelley, 

144. 80 Wis. 486; Pierstoflf ^. Jorges, 86 

Indiana. — Bottorf v, Conner, X Wis. 128; Kilboum Lodge Number 

Blackf. (Ind.)287. Three v. Kilboum, 74 Wis. 453; Stein 

Kentucky. — Reed v, Clarke, 4 T. B. tf, Benedict, 83 Wis. 616. 

Mon. (Ky.) 19. United States, — Consolidated Roller* 

Maine, — Coombs r Warren, 17 Me. Mill Co. v. Coombs, 39 Fed. Rep. 25. 

404. England. — Roberdeau v. Rous, I 

Maryland. — Bosley v. M*Kim, 7 Atk. 543; Kemp r. Tucker, L. R. 8 Ch. 

Har. ft J. (Md.) 468. 369. 

Massachusetts. — Russell v. Loring, 3 Demurrer After Withdrawal of Aatwer. 

Allen (Mass.) 125; Dearth v. Hide, etc., — In Lowe v. Morris, 4 Sneed (Tenn.) 

Nat. Bank, 100 Mass. 540; Creely v, 69, it was held that the court may, be* 

Bay State Brick Co., 103 Mass. 515; fore the cause is set down for hearing 

Clark V. Flint, 22 Pick. (Mass.) 231. on bill and answer, permit the defend'^ 

Minnesota. — St. Paul, etc., R. Co. ant to withdraw his answer and file a 

V. Robinson, 41 Minn. 394. demurrer to the jurisdiction of a court 

Missouri, — Blair v, Chicago, etc., of equity. 

R. Co., 89 Mo. 388. 2. Gullickson v. Madsen, 87 Wis. 19; 

I^ew York. — Livingston v. Living- Kilboum Lodge Number Three v. Kil- 

ston, 4 Johns. Ch. (N. Y.) 290; Wis- bourn, 74 Wis. 453; Stein v. Benedict, 

wall V. Hall, 3 Paige (N. Y.) 313; Reed 83 Wis. 616. 

r. Newburgh Bank, i Paige (N. Y.) Contra, — In Peck r. School Dist. No. 

2t5; Le Roy v. Piatt, 4 Paige (N. Y.) 4, 21 Wis. 523, it was held that the ob- 

81; Lynch v. Willard, 6 Tohns. Ch. (N. jeciion that the plaintlflf has an ade- 

Y.)342; Falton Bank 9. New-York, etc., quate remedy at law is not raised by a 

Canal Co., 4 Paige (N. Y.) 127; Under* demurrer that the complaint does not 

Wll V. Van Cortlandt, 2 Johns. Ch. (N. state facts sufficient to constitute a 

^•) 369; Hawl«y V. Cramer. 4 Cow. (N. cause of action, but that the objectfotl 

Y-) 7rj\ Whitlock v, Duffield, Hoffm. should be made a distinct ground of 

(N. Y.> iM; Bradley v. Root, 5 Paige demurrer. 

117 Volume XVIII. 



Tfftm fffT of 



REMEDY AT LAW. 



Batslng OI^JMtlaa. 



] 



at the trial,* since the only question which may properly be raised 
by such a demurrer is whether the complaint states a cause of 
action in equity.* 

2. By Answer — a. When Proper. — When the bill or com- 
plaint does not disclose facts showing the existence of an adequate 
remedy at law, the objection that there is in fact such a remedy 
should be raised by the defendant in his plea or answer.* 

6. Effect of Objection. — It has been held that if the 
objection that there is an adequate remedy at law is made in 
the answer, the complainant proceeds at the peril of costs if 
the objection is sustained at the hearing.* 

1. Meyer v, Garthwaite, 92 Wis. 571. AVw York, — Wiswall v. Hall, 3 

2. Meyer v, Garthwaite, 92 Wis. 571; Paige (N. Y.) 313; Fulton Bank v. New 
Pierstoff v. Jorges, 86 Wis. 128; Sherry York, etc.. Canal Co., 4 Paige (N. Y.) 
7/. Smith, 72 Wis. 339; Becker v. Trick- 127; Hawley v. Cramer, 4 Cow. (N. Y.) 
el, 80 Wis. 484. 727; Bradley v. Root, 5 Paig^e (N. 

Olqoetion to Admiiiion of EvidMioe In- Y.) 632; Livingston v. Livingston, 4 

luffioioiit. — In Pierstoff v, Jorges, 86 Johns. Ch. (N. Y.) 290. 

Wis. 128, the court, in holding that the OAia. — Culver v, Rodgers, 33 Ohio 

objection to the admission of evidence St. 537; Nicholson v. Pim, 5 Ohio St. 25. 

under the complaint did not raise the Vtrmont, — Bellows Falls Bank v, 

question of an adequate remedy at law, Rutland, etc., R. Co., 28 Vt. 470. 



said: " It is contended that the plain- 
tiff had an adequate remedy at law. 
But no such issue is raised by the an- 
swer. Counsel contends that his objec- 
tion to any evidence under the com- 
plaint did raise the question, and in 
support of such contention he cites 
Kilbourn Lodge Number Three v, Kil- 
bourn, 74 Wis. 452; Mackey v, Michel- 



IViscoHsin, — Peck r. School Dist. 
No. 4, 21 Wis. 523. 

United States, — Consolidated Roller* 
Mill Co. V. Coombs, 39 Fed. Rep. 25. 

England, — Roberdeau v. Rous, i 
Atk. 543. 

See also cases cited supra^ in note 
p. III. 

The Olgootion Muit Bo Speoifleallj Bat 



stetter, 77 Wis. 210. But in each of Up, and will not be availing, even 

those cases the question was raised by though the defendant reserves hj his 

regular demurrer. This court has re- answer his right to object to relief in 

peatedly held that * where the subject- the particular court, unless he sped- 

matter of an action is of equitable fies the ground of his objection in his 

cognizance, a demurrer ore tenus does answer. Holmes v. Dole, Clarke (N. 

not go to the point that the plaintiff Y.) 71. 

has an adequate remedy at law, but Objeotion Not Available by Aniwer. — 

only raises the question whether the It has been held that the objection that 

complaint states a cause of action in there is an adequate remedy at law is 

equity.** restricted to demurrer, plea, or motion, 

8. A/adama. — Bunn v, Timberlake, and is not available by answer. Hoi* 

104 Ala. 263. comb v, Canady, 2 Heisk. (Tenn.) 610; 

Arkansas, — Price Zf. State Bank, 14 Vincent z\ Vincent, i Heisk. (Tenn.) 

Ark. 50. 333; Leverton ». Waters, 7 Coldw. 

Connecticut, — Munson v, Munson, 30 (Tenn.) 20; Kirkman v. Snodgrass, 3 

Conn. 425. Head (Tenn.) 370; Brazeltonc. Brooks, 

Illinois, — Ryan v, Duncan, 88 111. 2 Head (Tenn.) 194, 



144; Black z/. Miller, 173 III. 489; Stout 
V. Cook, 41 111. 447; Turptn v. Dennis, 
139 111. 274; Monson v. Bragdon, 159 



" Undor tho Praotioo Aet the plea of 
remedy at law in a suit In equity is an* 
known. It has no place under our 



111.61; Harley V. Sanitary Dist., 54 111. system of pleading.'* Humphreys cr. 

App. 337. Atlantic Milling Co., 98 Mo. 542. 

Massachusetts. — Creely v. Bay State 4. Fulton Bank ». New York, etc.. 

Brick Co., 103 Mass. 515. See also Canal Co., 4 Paige (N. Y.) 127, in 

Clark V, Flint, 22 Pick. ( Mass.) 237; which case the court said: "If im- 

Russell ar, Loring, 3 Allen (Mass.) lai. proper and untrue allegations are in* 

118 Volume XVUL 



Waif« of OlQooaaa. RE MED Y AT LAW. Waivor of Objootion. 

S. By Kotionto Transfer to Proper Docket — In some jurisdictions 
It is held that the fact that the plaintiff has an adequate remedy 
*t law, is not a ground of demurrer to the petition or complaint, 
but that a motion should be made to transfer the action to the 
proper docket.^ 

DL Waiybb of Objection — eonena boIo m to waiTor. — It may 

^ laid down as a general rule that if the objection that the plain- 
tiff has an adequate remedy at law is not raised by the defendant 
'^ the proper manner and at the proper time, he will be con- 
^'dered to have waived it,* except in those cases where the sub- 

Pf^^^ in a bill for the purpose of change into the proper pioceedings, 
/>^^^CQdng a demurrer and to give ap- and a transfer of the action to the 
^^e^*'^ jurisdiction to a court of equity, proper docket.' Code, § 2514; Rev. 
^i^^V^^fendant may, by his answer, Stat., § 2613. It has been frequently 
^ J those allegations and insist that held by this court, under this provision 
^ to the other matters the complainant of the statute, that it is not ground of 
\^aS «i remedy at laiv. Although such demurrer that the plainti£f has com- 
aa objection in an answer will not save menced his action in equity when it 
the necessir.y of a full discovery as to should have been at law, or vice versa\ 
all the matters charged in the bill, it that the appropriate remedy is by mo- 
will, at the hearing, be sufficient to tion to have the action changed into the 
prevent the complainant from obtain- proper proceedings." Ct/r»^ Conyng- 
ing his relief in this court. The court liaro v. Smith, 16 Iowa 471: Byres v. 
of chancery is constantly burdened Rodabaugh, 17 Iowa 53; Brown v. 
with the investigation of facts, upon Mallory, 26 Iowa 469. 
written depositions and at great ex- 2. Alabama. — Tubb v. Fort, 58 Ala. 
pense, when from the face of the bill 277. 

itself, or from the testimony in the Arkansas, — Cockrell v, Warner, 14 
case, it is perfectly evident that the Ark. 345; Sexton v. Pike, 13 Ark. 193. 
complainant's appropriate remedy was Colorado. — Strousse v. Clear Creek 
in a court of law and not in this court. County Bank, 9 Colo. App. 478. 
But if the defendant will not make his Georgia, — May r. Goodwin, 27 Ga. 
objection in season he must be sub- 352; Bell v. McGrady, 32 Ga. 257. 
jected to the extra expense of a litiga- Illinois, — Johnson v. Miller, 50 111. 
tion here. Where the objection is App. 60; Dodge v, Wright, 48 111. 384; 
made in the answer, the complainant Stout v. Cook, 41 111. 447; Magee v, 
proceeds at the peril of costs if that ob- Magee, 51 111. 500; Turpin v. Den- 
jection is sustained at the hearing." nis, 139 III. 274; Pretty man v. Irwin, 29 
1. Crawford v, Carson, 35 Ark. 565; III. App. 122; Hickey t^. Forristal,49lll. 
Conifer v. Cotton, 37 Ark. 286; Gibbs 255; Harding z/. Olson, 76 111. App. 475; 
V, McFadden, 39 Iowa 371. See also Roche v, Norfleet, 63 111. App. 612; 
Latham v, Harby, 50 S. Car. 428. Vermont v. Miller, 161 111. 210; Mon- 
The Coda — "Enoras to Kind of Pro- son v, Bragdon, 159 111. 61; Hazle 
eeedlngi."— In Gibbs v, McFadden, 39 v, Bondy 173 III. 302; Ohling v, Luit- 
Iowa37i, it was insisted by the coun- jens, 32 111. 28; Kimball v. Walker, 30 
scl for the appellee that the plaintiffs 111. 503; Joliet Gas Light Co. r. Suther- 
had a plain, speedy, and adequate land, 68 111. App. 230; Baker v. Baker, 
remedy at law for the injuries com- 69 111. App. 461 ; Black v. Miller, 71 111. 
plained of, and for that reason they App. 342; Hay v, Bennett, 153 III. 271. 
could not have brought a suit in equity. Iowa, — Corey v, Sherman, (Iowa 
Miller, C. J., said: " If it were con- 1894) 60 N. W. Rep. 232; Bull v, 
ceded that the plaintiffs did have a Keenan, 100 Iowa 144; Savery v, 
full, speedy, and complete remedy at Browning, 18 Iowa 246; Matter 
law, still that fact is no ground for a of Knapp, loi Iowa 488; Tugcl v, 
demurrer to the petition. The statute Tugel, 38 Iowa 349; Phinny v. War- 
provides that • an error of the plaintiff ren, 52 Iowa 332; Hintrager v, Sum- 
^ to the kind of proceedings adopted bargo, 54 Iowa 604- 
shall not cause the abatement or dis- Massachusetts, — Dearth v. Hide, etc., 
nutsal of the action, but merely a Nat. Bank, 100 Mass. 540; Creely v. 

119 Volume XVIII. 



I^nr ^ oiilfiHMi. 



kEM£DY AT LAW. 



W*Itw if Ot^wtlM. 



ject-^matter is wholly foreign to the Jurisdiction of a court of 
chancery, and incapable of being properly brought before it, even 
by conBent.^ 

Bay State Brick Co., 103 Mass. 515; 153; Lone Jack Min. Co. v. Meg^^inSOA, 

Pager. Young, 106 Mass. 313; Crocker 82 Fed. Rep. 89; Pollock v, FarmctB* 

t^ Dtlloti, 133 MAis« 9t( Mattachttmiu L. ft T. Co.» 157 U. S. 409; Folu v. 

G«n. Hospital v. State Mot. L. Assur. St» Louis, etc., R. Co., 60 Fed. Rep. 

Co., 4 Gray (Mass.) 227. 316; Reynolds v. Watkins, 60 Fed. Rep. 

^^AiV<»ii. — Stockton «r. Wniiatns, 824; Consolidated Roller-Mill Co. i>. 

Walk. (Michi) idOk Coombs, 39 Fed. Rep. 2$. 

Mifme^tms'^'^K. Paul, etc., R. Co. 9, Bal« whtra SqaiteUe Jaxisdiotioa Is 

Robinson, 41 Minn. 394; Newton v. Doubtfol. — Though there may be a 

Kewlon, 46 Minn, 33. doubt whether the case made by a bill 

i1/i>jf>ji]^\ -«• Cable 9, Martin, i isoneofe<)Ui(able jurisdiction, because 

How. (Miss.) 556. of the remedy that the complaaaaat 

A^^rwia. '^ Stahlhut v. Bauer, $l may have at law, the doubt will, oil 

Neb. 64; Morris t\ Haas, 54 Neb. 579; appeal, be resolved in favor of the 

Taiieys v. Kelier, 45 Neb. taa jurisdiction, where the question was 

AV9 York, '^ Clarke 9, Sawyer, t N. not raised below. Preteca v% Maxwell 

Y. 498; Steffin V, Steffin. (Supm. Ct. Land Grant Co., 50 Fed. Rep« 674, 4 U, 

Gen. T.) 4 Civ. Pro. (N. Y.) 179; S. App. 326. 

Witherbee 9. Meyer, 84 Hun (N. Y.) AfiquisieeiiM ia Beferoaos to Xastor, 

146; MetrqpoliUn El. R. Co. v, Johti- -^ Where the defendant in a bill ia 

scon, 84 Hun (N. Y.) 83; Thomas v. equity has conceded the jurisdiction. 

Grand View Beach R. Ct>v, 76 Hun (N. so far as may be implied from his fail- 

Y.)6oi; Watts 9, Adler, 130 N. V. 646, ure to demur and his subsequent ac- 

41 N. Y.St. Rep. 325; Underbill fN Van quiescence in the reference of the cause 

Cot^tlandt, 2 Johns. Ch. (N^ YO 539; upon answer and replication to a maa- 

Bruce v. Kelly, 39 N. Y. Super. Ct. 27; ter, after such reference, involving 

Ketchum v. Depew, 81 Hun (N. Y.) heavy costs^ the case should be very 

278; Baron v% Korn, 127 N. Y. 224; clear to justify setting aside the pro- 

Ostrander &. Weber, 114 N. Y^ 95; ceedings for want of jurisdiction. 

Buffalo Stone, etc.^ Co. 9. Delaware, Evans v, Goodwin, 132 Pa. Su 136. 

etc., R. Co., 130 N. Y. 152; Alty.-Gen. 1. A/adama, — Tubb v, Port> 58 Ala. 

V. Purmort, 5 Paige (N. Y.) 620; Brad- 277. 

ley tK Root, 5 Paige (N. Y») 632; Wol- liUnois, —Stout i/. Cook, 41 III. 447; 

cott t^. Sullivan, 6 Paige (N. Y.) 117; Dodge v. Wright, 48 111. 384. 

Gable r. Milter, ro Paige (N. Y.) 627. Minnesota, —St. Paul, etc., R. Co, 

Ohio, -» Culver v^ Rodgers, 33 Ohio r. Robinson, 41 Minn« 394. 

St. 537. New York, ^ Ketchum ». Depew, 81 

Oregon^ -^O'HdstL v, Parker, 27 Ore- Hun (N. Y.) 278^ 



gon C56; KItcherside v, Myers, 10 Ore- 
gon 21. 
Ptnmytucmia, *^ Searight v, Carlisle 



Wisconsin, — Peck v. School Dist* 
No. 4, 21 Wis. 523. 

UniUd States, — Preteca v. Maxwell 



Deposit Bank, 162 Pa. St. 504; Harringw Land Grant Co., 4 U. S. App. 326* 

ton V, Florence OilCo.^ 178 Pa^Stw 444; Bole la TMLeral Courts.--*' The rule 

Shiilito tr. Shillito^ 160 Pa. Su 167. as stated in i Daniell's Chancery Prac- 

South Cetr^linm, -^ BOmar v. MeatiS, ti^ 555, 4th Am. ed., is that if the ob- 

47 Sk Car. 190. jectionof want of jurisdiction in equity 

Ft>vifftia. *^ StonebUrg^r v. Roller, is not taken in proper time, namely, 

(Va. KI96) 25 S« E. Rep. rot2. before the defendant enters into his 

W\isconnn, ^^ Peck v. School Dist. defense at large, the court, having the 

No. 4, ii Wis. 523; Swi»etser p. Silber, general jurisdiction, will exercise it; 

87 Wis. E02; Kelley v. Kelley, 80 Wis. and in a note on page 550 many cases 

486; State 9, Circuit Ct., 98 Wis. 143; are cited to establish that ' if a defend- 

ReAiington c. Foster, 42 Wis. 608; ant in a suit in equity answers and 

Elite 7K AU«n, 99 Wis. 598. submits to the jurisdiction of the court, 

Vinttd States^ «*- Watte v, O'Neil, 72 It is too late for him to object that the 

Fed. Rep. 348; Preteca v. Maxwell plaintiff has a plain and adequat^s 

Land Grant Cov> 50 Fed. Rep. 674; remedy at law. This objection should 

Schooliield xk Rhodes, 82 Fed. Rep. be taken at the earliest opportumty. 

IdO Volume XVIII. 



tiim d OliMioii. REMED Y AT LAW. Waiver of Olijatite. 

idmitatiM «f Salt. — The rule just stated applies only in cases of 
concurrent jurisdiction,^ and has no application where the cause 
is not a proper one for equity,* or where from the nature of its 

subject-matter the cause cannot be brought within the jurisdic* 
tion of a court of equity.' In such cases the objection may be 

The above rule must be taken with the tablished when e<]uitable jurisdiction 

Qualification that it is competent for was vested in the Court of Chancery 

the court to grant the relief sought, and legal jurisdiction in the court of 

and that it has jurisdiction of the sub- law, and it was applied in cases where 

jcct-matter.* • * * it was held in the jurisdiction of the two courts was 

Lewis 9. Cocks, 25 Wall. (U. S.) 466, concurrent. In such cases, when the 

that if the court, upon looking at the plaintiff might have sued at law and 

proofs, found none at all of the matters obtained some sort of a remedy, or 

which would make a proper case for might have brought his action in the 

eqaltjr, it would be tne duty off the equity courts and obtained a more 

court to recognize the fact and give it complete remedy, it was held that if 

effect, though not raised by the plead* the defendant permitted him to proceed 

ings nor suggested by counsel. To the to a hearing in the equity action with- 

stme effect is Oelrichs v, Spain, 15 out raising the point that he had a 

Wall. (U. S.) 211. The doctrine of sufficient remedy at law, he had waived 

these and similar cases is that the it. The reason was that the court of 

court, for its own protection, may pre- equity has jurisdiction, because, upon 

vent mattett purely cognizable at law the facts proved, the plaintiff would be 

from being drawn into chancery at the entitled to equitable relief, and that to 

pleasure olF the parties interested; but permit the defendant to allow the case 

it by no means follows, where the sub- to proceed to a hearing before attempt* 

jcct^matter belongs to the class over ing to oust the court of its jurisdiction 

which a court of equity has jurisdiction, would result in a great injustice to the 

and the objection that the complainant plaintiff. But it will be found that the 

has an adequate remedy at law is not rule was applied only in cases where 

made until the hearing in the appellate the remedy was concurrent, and it was 

tribunal, that thelatiercan exercise no only in such cases that the defendant 

discretion in the disposition of such ob* was obliged to assert, at the threshold 

jection. Under the circumstances of of the case, his claim that the action 

\\k\s ease it comes altogether too late, was not an action in equity. The rule 

et^B though, if taken in limine^ it was then, as it is laid down in the case 

Rilsht have been worthy of attention." of Bradley v. Aldrich, 40 N. Y. 504, 

^tynes r*. Dumont, 130 U. S. 354, that where the plaintiff came into court 

^MffUd in Brown t?. Lake Superior Iron invoking the jurisdiction of the court 

Co., 134 U. S. 530. See also Kilbourn of equity upon matters as to which a 

f. Sanderland, 130 U. S. 505; Union court of law had no jurisdiction, he 

Trust Co. v^ Illinois Midland R. Co., was obliged 10 prove a cause of action 

117 U. S, 468. in equity, and failing in that, he lost 

i. Green v. Cneighton, 10 Smed. & his case." 

M. (Miss.) 159; Ketchum v. Depew, 81 8, Ketcfaum v. Depew, 81 Hun (N, 

Hun (N. y.) 278; Marsh v. Haywood, Y.) 278; Allen v. Pullman's Palace Car 

6 Humph. (Tenn.) 213. Co., 130 U. S. 658; Lewis v. Cocks, 23 

TheDoetrineEzplained.— In Ketchum Wall. (U. S.) 466; Parker v. Winni- 

V. Depew, 61 Hun (N. Y.) 278. it was piseogee Lake Cotton, etc., Co., 2 

said: " It is claimed that the defendant Black (U. S.) 545; New York Guaranty 

has waived the right toobjectto a trial Co. v. Memphis Water Co., 107 U. S. 

at the special term, because he has 205. 

failed to set up in his answer that the 8. Griffin v, Orman, g Fla. 22; Stout 

plaintiff had an adequate remedy at v. Cook, 41 111. 447; Prettyman r. 

law, and several cases are cited which Irwin, 29 111. App. 122; Hickey v. For- 

hold that a defendant cannot, when ristal, 49 111. 255; Keokuk, etc., R. Co. 

sued in equity, avail himself of the de- v. Donnell, 77 Iowa 221 ; Green v, 

fense that an adequate remedy at law Cretghton, 10 .^med. & M. (Miss.) 159; 

exists, unless he pleads that defense Sherwin v. Gaghagen, 39 Neb. 238; 

in his answer. That doctrine was es- Grandin v, Le Roy, 2 Paige (N. Y.) 509; 

121 Volume XVIII. 



Xflbot of 



REMEDY AT LAW. 



THimifw! «f BUL 



raised at any stage of the proceedings,^ or upon appeal.* 

X. Etfect of DI81U88AL OF BiLL. — If a court does not take 
jurisdiction of a suit in equity, but dismisses the bill because the 
plaintiff has an adequate remedy at law, such dismissal should be 
without prejudice to the right to maintain any action at law or 
other proceeding to which the plaintiff may be advised;* and 
the dismissal should be with such words of qualification as will 
show that it is without prejudice, as otherwise the presumption 
will be that the dismissal was upon the merits.* 

EdgetC V. Douglass, 144 Pa. St. 95; 6 Wall. (U. S.) 134; Foote v. Gibbs, i 

M'Donald c. Crockett, 2 McCord Eq. Gray (Mass.) 412. See also Pittsburgh, 

(S. Car.) 130. etc., Drovcyard Co/s Appeal, 123 Pa. 

In Heyer r. Burger. Hoffm. (N. Y.) St. 250. 

14, the court said: *' It is settled in our 4. Foote v. Gibbs, i Gray (Mass.) 

court that where there is a full and 412; Van Norden v, Morton, 99 U. S. 

adequate remedy at law, the objection 382. See also Bigelow r. Winsor, i 

must betaken in a pleading. It is too Gray (Mass.) 301. 

late to raise it at the hearing. Grandin " It is a fundamental rule in the ad- 
V. Le Roy, 2 Paige (N. Y.) 509, and the ministration of justice that a question 
cases cited. But the chancellor in the once litigated and determined between 
case cited, as well as in Hawley v, the parties, in a court of competent 
Cramer, referred to 4 Cow. (N. Y.) 727, jurisdiction, is to be considered as at 
adds the qualification, 'unless this court rest. But if a court does not take 
be wholly incompetent to grant the re- jurisdiction of a suit in equity, but dis- 
lief sought by the bill.* This doctrine misses the bill because the plaint'fT has 
is repeated by him in Wiswall v. Hall, an adequate remedy at law, or for want 
3 Paige (N. Y.) 316, and more deliber- of prosecution, or otherwise, for some 
ately in Utica Bank v. Utica, 4 Paige cause not embracing an adjudication 
(N. Y.) 400, where there was a written on the merits, such dismissal is not a 
stipulation to submit the case upon the bar. There is nothing to indicate the 
bill alone, and he held this to be a grounds of dismissal in this case ex- 
waiver of the objection. See also cept the fact of dismissal, after an ap- 
Underhill v. Van Cortlandt, 2 Johns, pearance for the defendants. But the 
Ch. (N. Y.) 339. In Ireland, Lord authorities, both in England and io 
Manners has admitted the objection of this country, are decisive that a gen- 
a full remedy at law to be raised at the eral entry of ' bill dismissed,' with no 
hearing. King v, Barrett, 2 Molloy words of qualification, such as * dis- 
319." missed, without prejudice* or * with- 

1. Stout V, Cook, 41 III. 447. out prejudice to an action at law^ ' or 

2. Allen v. Pullman's Palace Car the like, is conclusively presumed to 
Co.. 139 U. S. 658. See also in this be upon the merits, and is a final de- 
connection, supra^ p. 115. termination of the controversy.*' Per 

8. Van Norden v, Morton, 99 U. S. Shaw, C. J., in Foote v, Gibbs, i Gray 
378; Thompson v. Centra^Ohio R. Co., (Mass.) 412. 

123 Volume XVIII. 



REMITTITUR. 

By Archibald C. Boyd. 

I. ]>S7nriTI0V, 124. 

Q* PO^WEB OF COVBT TO SVTEB SSXITTITUB, 124. 

1. In General^ 124. 

2. In Actions for Unliquidated Damages for Torts^ 125. 

3. Necessity of Consent of Prevailing Party ^ 126. 

4. Necessity of Giving Option of New Trials 127. 

5. As Invasion of Right of Trial by Jury^ 127. 
€i, W?un Power Exercised, 128. 

a. Excess Apparent or Ascertainable^ 128. 

b. To Prevent Appeal, 129. 

c. As Against Objection of Losing Party^ 13a, 

m "VOXUVTABT BeXITTITUB, 1 30. 

1. Allowance as Matter of Course^ 130, 

2. Requisites of Offer, 132. 

3. Manner of Making, 133. 

4. JVi?/iV<r, 133. 

5. Necessity of Order of Courts 133, 

6. 7y«r^ of Making, 133. 

rr. O^iovAL Obaet or Bexittitub, 134. 

1. New Trial or Remittitur, 134. 

2. Reversed or Remittitur, 136. 

3. TY^r/ of Exercise of Option, 137. 

▼• Ssbobs Citbabls bt Bexittitttb, 138. 

1. In General, 138. 

2. Improper Admission or Exclusion of Evidence^ 140. 

3. Verdict in Excess of Ad Damnum, 140. 

4. judgment in Excess of Verdict, 142. 

5. Improper or Excessive Recovery of Interest, 142. 

6. Improper or Excessive Recovery of Costs or Attorney's PeeSy 

143- 

7. Improper Recovery of Exemplary Damages, 143. 

S. Excessive Recovery of Land^ 143. 

^ B^moBs Hot Citbable by Bexittitub, 144. 

t. Verdict Result of Passion or Prejudice, 144. 

a. Failure of Pleading to Shaw jurisdiction, 145. 

3. judgment of justice in Excess of jurisdiction, 145. 

^^ CoTjBT nr Which Bexittitub Should Be Eetebbd, 145. 

^^ IltMSITIOE OP TEBX8, 1 46. 

I. On Prevailing Party, 146. 
3. On Losing Party, 147. 

V» Volwne XVIIL 



Powtr of Court 



REMITTITUR. 



to Enter SomittiEr. 



IX. JUBOXEVT OV SVTBT OF RSXITTITUB, 1 48. 

1. In Trial Court ^ 148. 

2. In Appellate Courts 148. 

X. C0V0LU8IYEHE88 07 SSXITTITUB, 148. 



CROSS-REFERENCES. 

As to Remittitur as process issued by appellate court on the decision of 
an appeal or writ of error see article MANDATE AND 
PROCEEDINGS THEREON, vol. 13, p. 835. 

L DETnriTlOV. — A remittitur of damages is the relinquishment 
or surrender of a part of the damages awarded in a cause.^ 

n. PowEB 07 Ck>irBT TO EvTEB BsxiTTiTUB -^ 1. In GteneraL — 
The power of a court, in actions where there is an established 
standard of valuation, to eliminate by a remittitur any excess in 
the recovery above what the evidence satisfactorily establishes, is 
well settled.* 

Tho Fraotioo JtitUtC — The exercise of such power is sanctioned 
on the theory that the excess arises from misapprehension of the 
law or the facts, or error in computation, not necessarily permeat- 
ing and vitiating the entire verdict, and which it is competent to 

1. Where one of the parties to an ac- El. R. Co., 61 Hun (N. Y.) 626, 15 N. 
tion obtains a judgment for damages, Y. Supp. 923; Kelly v. Leggctt, 122 N. 
which he is either not entitled to or is Y. 633, 33 N. Y. St. Rep. 264. 



willing to abandon, he makes an entry 
on the record called remittitur damtta^ 
by which he gives up or remits those 
damages. Archbold Prac. 805, 1009. 
2. Nudd V. Wells, 11 Wis. 415, 



Ohio, — Cleveland, etc., R. Co. p. 
Himrod Furnace Co., 37 Ohio St. 

434. 

T€X€U, — Thomas v, Womack, 13 

Tex. 580; Gulf, etc., R. Co. ». Rede- 



wherein it was said: *' The practice of ker, 75 Tex. 310; McCormick Harvest- 

reQiitting where the illegal part is ing Mach. Co. v. Wesson, (Tex. Civ. 

clearly distinguishable from the rest, App. 1897) 41 S. W. Rep. 725; Nun- 

and may be ascertained by the court nally v. Taliaferro, 82 Tex. 286; 

without assuming the functions of the Clifford v. Lee, (Tex. Civ. App. 1893) 

jury and substituting its judgment for 23 S. W. Rep. 843. 

theirs, is well settled." iVest Vir^nia, — Vinal v. Core, 18 

See also the following cases: W. Va. I. 

Georgia. — Whaley f . Broadwater, 78 fVtsc^nstn. — Ketch um v. Mukwa, 24 



Ga. 336. 
Illiitois, — Glos v» McKeown, 141 111. 

288. 



Wis. 303. 

In niLiois the Appellate Court may 
allow a remittitur of damages recov- 



Indiana. — Cleveiand, etc., R. Co, v, ered and enter judgment for the re- 
Beckett, II Ind. App. 547. mainder. Chicago, etc., R. Co. v, 

Iowa. — Bloom v. State Ins. Co., 94 Walsh, 157 III. 672; Elgin City R. Co. 

Iowa 359. V. Salisbury, 162 III. 187. 

Kansas. — George R. Barse Live In Iionishott the supreme court on ap- 

Stock, etc., Co. V. Guthrie, 50 Kan. peal may reduce the amount of a re- 

476; Atchison, etc., R. Co. v. Richards, covery to a sum which will cover the 



58 Kan. 344. 

Maine. — Ekstrotn r. Hall, 90 Me. 
186. 

Missouri. — Zurfluh v. People's R. 
Co., 46 Mo. App. 636; Schmitz v, St. 
Louis, etc., R. Co., 46 Mo. App. 380. 

New Y^rk, — Willetts v. New York lard, 10 La. Ann. 557. 

124 Volame XVIII. 



actual damages sustained by the pre- 
vailing party. Jackson v. Schmidt, 14 
La. Ann. 818; Benagam v, Piassan, 
15 La. Ann. 703; Block v. Banner- 
man, 10 La. Ann. I; Black 7. Carroll ton 
R. Co., 10 La. Ann. 33; KiAg v. Bal- 



Imr if Govt REMITTITUR. to Enter Xaaittltw. 

correct, with the assent of the party whom alone the correction 
could prejudice, by striking therefrom any distinct item, or excess 
in the computation of its value, appearing to be unsupported by 
the evidence.^ 

WUb bj Statute a Ntw Trial Ii GiTea as of right to the defendant 
and the recovery is excessive, a remittitur cannot be entered 
without his consent.* 

2. In. Actions for TTnliquidated Damages for Torts. — The power 
of a court to permit or require the entry of a remittitur in actions 
for unliquidated damages for torts has often been drawn in 
question and even denied,* but by the great weight of authority 
the power exists.^ 

1. Pendleton Su R. Co. v. Rahmann, unliquidated damages for torts was not 

22 Ohio St. 446. to be approved, as the better practice 

S. Strean v. Lloyd, 128 111.493; Lowe was to sustain or set aside the verdict 

V. Foulke, 103 III. 58. See also East as a whole. 

Sl Louis V. Hackett, 85 111. 382. 4. Arkansas. — Little Rock, etc., R. 

These were actions in ejectment de- Co. v. Barker, 39 Ark. 491. 

cided under a statute permitting one California. — George v. Law, i Cat. 

new trial in such actions as a matter 363; Benedict v. Cozzens, 4 Cal. 381; 

of right Tar bell v. Centra] Pac. R. Co., 34 Cal. 

8. Gurley v, Missouri Pac. R. Co., 616; Kinsey v, Wallace, 36 Cal. 46a; 

104 Mo. 211, wherein the court said: Gregg v. San Francisco, etc., R. Co., 

** We have no scales by which we can 59 Cal. 312; Phelps v, Cogswell, 70 

determine what portion is just, and the Cal. 201. 

result of reason based upon the evi- Colorado, — Duncan v, Whedbee, 4 

dence, and what part is poisoned with Colo. 143. 

prejudice and passion. We do not District of Columbia, — Flannery v, 

think it within our province to assess Baltimore, etc., R. Co., 4 Mackey (D. 

the damages. When we set aside any C.) iii. 

part of the verdict, we destroy its in- Illinois. — Kolbzr. Klages, 27III. App. 

tegrity, and we have no right to set 531; Chicago, etc., R. Co. v. Des Lau- 

onrselves up as triers of facts, and riers, 40 111. App. 654; McCausland 

render another and different verdict, v. Wonderly, 56 III. 410; Clayton v. 

We think the only logical course in Brooks, 31 111. App. 62; Thomas t/. 

SQch cases is to let the verdict stand or Fischer. 71 111. 576; Illinois Cent. R. 

set it aside as an entirety." See also Co. v, Ebert, 74 III. 399; Albin v. Kin- 

St. Louis, etc., R. Co. v. Hall, 53 Ark. ney, 96 III. 214; Union Rolling Mill Co. 

7; Brunswick Light, etc., Co. v. Gale, v, Gillen, 100 111. 52; Libby v. Scher- 

91 Ga. 813; Savannah, etc.. R. Co. v, roan, 146 111. 554; Chicago, etc., R. Co. 

Harper, 70 Ga. 119; Brown v, Morris, v. Dickson, 88 III. 431; North Chicago 

3 Bush (Ky.) 81; Franklin v. Fischer, St. R. Co. v. Wrixon, 150 111. 532; Chi- 

51 Mo. App. 345; Rodney v. St. Louis cago, etc.. R. Co. v. Walsh, 157 111. 

Southwestern R. Co., 127 Mo. 676; 672; Elgin City R. Co. v. Salisbury, 

Cassin v. Delany, 38 N. Y. 178; Cru- 162 111. 187. 

miell V. Hill, 14 Daly (N. Y.) 409; Indiana, — Cleveland, etc., R. Co. t/. 

Clifford V. Lee, (Tex. Civ. App. 1893) Beckett, 11 Ind. App. 547. 

23 S. W. Rep. 843; Vinal v. Core, 18 Indian Territory. — Kansas, etc., 

W. Va. i; Unfried v. Baltimore, etc., Coal Co. v. Reid, (Indian Ter. 1897)40 

R. Co., 34 W. Va. 260; Potter v, Chi- S. W. Rep. 898. 

cago, etc., R. Co , 22 Wis. 615. Iowa, — Collins v. Council Bluffs, 35 

PrMtios MHtpproved. — In Unterber- Iowa 432; Sherman v. Western Stage 

gero. Scharff, 51 Mo. App. 102, it was Co., 24 Iowa 515; Cooper v. Mills 

beld that though the trial court had the County, 69 Iowa 350; Keyser v, Kansas 

power to require a remittitur of a part City, etc., R. Co., 56 Iowa 440; Camp, 

of the verdict as a condition to the bell v. Chicago, etc., R. Co., 35 Iowa 

overrnliog of a motion for a new trial, 334; Union Mercantile Co. v. Chandler, 

Ac exercise of the power in actions for 90 Iowa 650. 

125 Volume XVIIL 



P«w«r of Oonrt REMITTITUR. to Entor Somlttitvr. 

ladiofttioA bj AppoUato Court of Amount. — An appellate court having^ 

the power to declare a recovery excessive may also determine the 
amount of the excess.^ 

3. Veoetsity of Conient of Prevailing Party. — But a court has no 

power to reduce a verdict and render judgment for the reduced 
amount unless the prevailing party consents to the reduction.* 

Kansas, — Missouri Pac. R. Co. r. Tex<is. — Gulf, etc., R. Co. v, McFad- 

Dwyer, 36 Kan. 58. den, (Tex. Civ. App. 1894) 25 S, W. 

Louisiana. — Donnell v, Sandford, 11 Rep. 451. 

La. Ann. 645: Caldwell v, Vicksburg, Utah, — Brown v. Southern Pac. R. 

etc., R. Co., 41 La. Ann. 624; Black v, Co., 7 Utah 288. 

Carrollton R. Co., 10 La. Ann. 33; Wisconsin, — Corcoran z^. Harran, 55 

Keller v, Vernon, 23 La. Ann. 165. Wis. 120; Baker v, Madison, 62 Wis. 

Maine, — Howard v, Grover, 28 Me. 137. 

97, 48 Am. Dec. 478. United StaUs. — Blunt v. Little. 3 

Minnesota, — Pratt v, Pioncer-Press Mason (U. S.) 102. 

Co , 35 Minn. 251; Craig v. Cook, 28 L Hennessy v. District of Columbia, 

Minn. 232; Hall v, Chicago, etc., R. 19 D. C. 220; Florida R., etc., Co. v, 

Co., 46 Minn. 439. Webster, 25 Fla. 394; Nicholds 9. 

Missouri. -^Y\xTm%\i v, Missouri Crystal Plate Glass Co., 126 Mo. 55; 

Pac. R. Co., 102 Mo. 456; Burdict v, Burdict v. Missouri Pac. R. Co., 123 

Missouri Pac. R. Co., 123 Mo. 221; Mo. 221; Kennon v, Gilmer, 9 Mont« 

Hahn v, Sweazea, 29 Mo. 199; Nich- 108; Baker v. Madison, 62 Wis. 137. 

olds V. Crystal Plate Glass Co., 126 But see Savannah, etc., R. Co. v. Har- 

Mo. 55; Barbour zf. McKee, 7 Mo. App. per, 70 Ga. 119; Brunswick Light, 

587; Waldhier v, Hannibal, etc., R. etc., Co. v. Gale, 91 Ga. 813; Pidgeoa 

Co., 87 Mo. 37. V. School Trustees, 44 111. 501; Rodney 

Montana, — Hamilton v. Great Falls v, St. Louis Southwestern R. Co., 127 

St. R. Co., 17 Mont. 334; Kennon v. Mo. 676; Franklin v, Fischer, 51 Mo. 

Gilmer, 5 Mont. 257. App. 345; Cassin v, Delany, (Ct. App.) 

New Hampshire, — Belknap v. Bos- 6 Abb. Pf. N. S. (N. Y.) i. 

ton, etc., R. Co., 49 N. H. 358. 2. Massadillo v, Nashville, etc., R. 

New Jersey, — Union v, Durkes, 38 Co., 89 Tenn. 66i. In this case the 

N. J. L. 21. jury rendered a verdict for the plaintiff 

New York. — Cummings v. Line, 63 for $5,500. The defendant moved for 
Hun (N. Y.) 636, 18 N. Y. Supp. 469; a new trial. The court overruled all 
Turton v. New York Recorder, (C. PI. the causes except the one which as- 
Gen. T.) 3 Misc. (N. Y.) 314; Klemm signed that the verdict was excessive. 
V, New York Cent., etc., R. Co., 78 and stated " that ground was well 
Hun (N. Y.) 277: Bailey v, Rome, etc., taken, * * • and the court would grant 
R. Co., 80 Hun (N. Y.) 4; Mclntyre v, a new trial * * * unless the plaintiff 
New York Cent. R. Co., 47 Barb. (N. wiU remit the sum of $2,500; ** but 
Y.) 515: Murray v, Hudson River R. ** if the plaintiff will remit the sum 
Co., 47 Barb. (N. Y.) 196, affirmed in 48 of $2,500, the judgment for $3,000 will 
N. Y. 655; Laning v. New York Cent, be allowed to stand." Thereupon 
R. Co., 49 N. Y. 538; Ryder v. New plaintiff moved the court for leave to 
York, 50 N. Y. Super. Ct. 220; Lock- remit $2,500 " under protest, and ex- 
wood V. Twenty-third St. R. Co., 15 cepted to the action of the court," 
Daly (N. Y.) 374; Vail z/. Reynolds, 118 and appealed from so much of the 
N. Y. 297; Collins v. Albany, etc., R. judgment as required him to remit. 
Co., 12 Barb. (N. Y.) 492; Clapp v. It was said: ** The action of the court 
Hudson River R. Co., 19 Barb. (N. Y.) was virtually compelling the plaintiff 
461; Whitehead v. Kennedy, 69 N. Y. to remit. When plaintiff would only 
462. remit under protest and objection, the 

Pennsylvania. — Emerson v, Schoon- court should have granted a new trial, 

maker, 135 Pa. St. 437. being satisfied, as he said, the judg- 

South Carolina, — Guerry v, Kerton, ment was excessive. We would not 

a Rich. L. (S. Car.) 507. be understood as intimating that the 

Tennessee, — Branch v, |}ass, 5 Sneed court might not suggest a remittitur, 

(Tenn.) 366, and if plaintiff accepted it without pro* 

126 Volume XVIU. 



PMnr d Omt REMITTITUR. to Xntar Bemlttitnr. 

1 Veoeitity of Giving Option of Hew Trial — And a court cannot 
render judgment for a less sum than the verdict without giving 

the prevailing party the option of accepting such less sum, or 
submitting to a new trial. ^ 

5. As Inyagion of Sight of Trial by Jury. — The practice of 
directing or permitting a remittitur has been held by high 
authority not to be an impairment of the constitutional right of 
trial by jury.* 

test or objection, then, on application error, in order to defend themselves 
of plaintiflf to remit, a new trial might against being held liable for the larger 
be refused; but a remittitur * under sum, as the plaintiff contended that 
protest and over the objection ' of the they must be upon this record." 
plaintiff should not be entered.'* See See also Noel v, Dubuque, etc., R. 
also Thompson v, Thompson, 5 Ark. Co., 44 Iowa 293; Thaule v. Krekeler, 
18; George v. Law, i Cal. 363; Brown 17 Hun (N. Y.) 338; Crumiell v. Hill, 
V. McLeish, 71 Iowa 381; Roberts v. 14 Daly (N. Y.) 409; Hudson v. Apple- 
Smith, I Morr. (Iowa) 417; McCaus- gate, 87 Iowa 605 ; Massadillo t/. Nash- 
land V, Wondcrly. 56 111. 410; Willetts ville, etc., R. Co., 89 Tenn. 661. 
V. New York El. R. Co., (Supm. Ct. VolimUury Bemittitnr. — A party vol- 
Gen. T.) 15 N. Y. Supp. 923; Hook v. untarily remitting a portion of his re- 
Turoball, 6 Call (Va.) 85. covery is not entitled to the option of a 
1. Kennon v, Gilmer, 131 U. S. 22, new trial. McCoy v. Treichler, 90 
wherein the court by Gray, J., said: Iowa i. 

"By the action of the court in entering Trial hy Court. — In Flickinger v, 
an absolute judgment for the lesser Omaha Bridge, etc., Co., 98 Iowa 358, 
sum, instead of ordering that a judg- it was held that the rule that the trial 
ment for that sum should be entered if judge cannot remit a portion of the 
the plaintiff elected to remit the rest of verdict without giving the election to 
the damages, and that if he did not so have a new trial, was not applicable 
remit there should be anew trial of the where the case is brought to the court 
whole case, each paay was preju- without a jury. In such cases the 
diced; and either, therefore, is entitled judge may change his conclusions as 
to have the judgment reversed by writ to the amount to be allowed without 
of error. The plaintiff was prejudiced, giving any such election, 
becaase he was deprived of the election 2. Arkansas Valley Land, etc., Co. 
to take a new trial upon the whole case. v. Mann, 130 U. S. 69, wherein the 
The defendants were prejudiced, be- court said: "The practice (of requir- 
cause if the judgment for the lesser ing a remittitur) is sustained by sound 
sum had been conditional upon a re- reason, and does not, in any just 
mittitur by the plaintiff, the defend- sense, impair the constitutional right 
&nis, if the plaintiff had not remitted, of trial by jury. It cannot be disputed 
would have had a new. trial generally: that the court is within the limitsof its 
and if the plaintiff had filed a remitti- authority when it sets aside the verdict 
tor, and thereby consented to the judg- of the jury and grants a new trial 
nient, he could not have sued out a where the damages are palpably or 
writ of error, and the defendants would outrageously excessive. But in con- 
have been protected from the possibil- sidering whether a new trial should be 
ityof being obliged in any event to pay granted upon that ground, the court 
the larger sum. Whereas upon the necessarily determines, in its own 
absolute judgment entered by the mind, whether a verdict for a given 
court, without any election or consent amount would be liable to the objection 
of the plaintiff, the plaintiff had the that it was excessive. The authority 
right to sue out a writ of error; and he of the court to determine whether the 
availed himself of that right, and damages are excessive implies author- 
docketed his writ of error in Uiis court ity to determine when they are not of 
t>«fore the defendants docketed their that character. To indicate, before 
Writ of error. The defendants were passing upon the motion for a new 
thus put in the position of being trial, its opinion that the damages are 
obliged to contest the plaintiff's writ of excessive, and to require a plaintiff to 

127 Volume XVIII. 



P«v«r «f Govt 



REMITTITUR. 



to Smt«r Bttnittlttf. 



& When Power Bzereiaed — a. Excess Apparent or Ascer- 
tainable. — The power of a court to permit or require the entry 
of a remittitur is, however, only exercised in cases where the 
amount of the excess is apparent or is readily ascertainable.^ 



submit to a new trial, unless, by remit- 
ting a part of the verdict, he removes 
that objection, certainly does not de- 
prive the defendant of any right, or 
give htm any cause for complaint. 
Notwithstanding such remission, it is 
still open to him to show in the court Minn. 248; Sanborn v. Webster, a 
which tried the case that the plainti£f Minn. 523; Smith v. Dukes, 5 Minn. 



Mass. 208; Lambert v, Craig, is Pick. 
(Mass.) 199; Hodges v, Hodges, 5 Met. 
(Mass.) 205. 

Michigan, — Wanner v. Mears, 102 
Mich. 554. 

A/sMM/ftf/a. ^ Bond V. Corbett, 2 



was not entitled to a verdict in any 
sum, and to insist either in that court, 
or in the appellate court, that such 
errors of law were committed as entitled 
him to have a new trial of the whole 



case." See also to the same effect 66 Miss. 106. 



373; Seeman v. Feeney, 19 Minn. 79. 

Mississippi. — Newman v, Mac kin, 
13 Smed. Si M. (Miss.) 383; Louisville, 
etc., R. Co. I/. Day, 67 Miss. 227; 
Louisville, etc., R. Co. v, McCollister, 



Burdict r, Missouri Pac. R. Co., 123 
Mo. 221; Branch v. Bass, 5 Sneed 
(Tenn.) 366. But see Gulf, etc., R. 
Co. V. Coon, 69 Tex. 730. 

1. Arkansas, — St. Louis, etc., R. 
Co. V. Hall, 53 Ark. 7; Dodds v. 
Roane, 36 Ark. 511. 

California, — Loveland v. Gardner, 
79 Cal. 317. 

Colorado, — Salida v, McKinna, 16 
Colo. 523. 

Dakota, — Cady v, Chicago, etc., R. 
Co., 5 Dak. 97. 

Florida, — McLean ». Spratt, 20 Fla. 

515. 



Missouri, — Hunter v, Mexico, 49 
Mo. App. 17; Berthold v. Gruner, 12 
Mo. App. 575; Ibers v. 0*Donnell, 
25 Mo. App. 120; Pierce r. Lowder, 
54 Mo. App. 25: Atwood V. Gillespie, 4 
Mo. 423; Pucket V. St. Louis, etc., R. 
Co., 25 Mo. App. 650; Slattery v, St. 
Louis, 120 Mo. 183; Zerbe v. Missouri, 
etc., R. Co., 70 Mo. App. 644; West v. 
Moser, 49 Mo. App. 20T; State v. Mc- 
Keon, 25 Mo. App. 667; Pendergast tf. 
Hodge, 21 Mo. App. 138; Chitty v. St. 
Louis, etc., R. Co., (Mo. 1899) 49 S. W. 
Rep. 868; Warder v, Henry, 117 Mo. 
530; Priest r. Deaver, 22 Mo. App. 



Georgia, — Lary z/. Lewis, 76 Ga. 46; 276; Hartman v. Louisville, etc., R. 

Miller v. Wilkins, 79 Ga. 675; Dillard Co., 48 Mo. App. 619. 

V, Ellington, 62 Ga. 389. Nebraska, — Gerber v, Jones, 36 Neb. 

Illinois. — Toledo, etc.. R. Co. v, 126. 

Beals, 50 III. 150; Giddings v, Mc- New Hampshire, — Cram v. Had ley, 

Cumber, 51 111. App. 373; Chicago, 48 N. H. 191; Sanborn v, Emerson, 12 

etc., R. Co. V. Hall, 90 111. 42; Clapp N. H. 58; Pierce v. Wood, 23 N. H. 

V. Herdman. 25 III. App. 509; Erie, 519; Willard v. Stevens, 24 N. H. 271; 

etc.. Dispatch v. Stanley, 22 III. App. Cross v, Wilkins, 43 N. H. 332. 

459. AVw York, — Whitehead v, Ken- 

Indiana. — Tucker v. Hyatt, 151 Ind. nedy, 69 N. Y. 462; Kalfur v. Broad« 

332; Con well V. Jeger, 21 Ind. App. way Ferry, etc., R. Co., 34 N. Y. App. 

no; Giles v. Law, 14 Ind. 16; Parrish Div. 267; Lieberman v. Third Ave. R. 

V. Heikes, 14 Ind. 194; Line v. State, Co., (Supm. Ci. App. T.) 25 Misc. (N. 

131 Ind. 468; Terre Haute, etc., R. Co. Y.) 704; Ljddy v. Chamberlain, 98 N. 

V. Jarvis, 9 lod. App. 438. Y. 677; Sears v. Conover, 3 Keyer 

Iowa, — Union Mercantile Co. v. (N. Y.) 113; Godfrey tf. Moser, 66 N. 

Chandler, 90 Iowa 650; Austin v. Y. 250; Andrews v. Tyng, 94 N. Y. 16; 

Burgett, 10 Iowa 302; Payne v. Billing- Cuff v. Dorland. 57 N. Y 560; CockerlH 

ham, 10 Iowa 360; Miller v. Keokuk, v. Loonam. 36 Hun (N. Y.)353; Leach 



etc., R. Co., 63 Iowa 680; Fuller v, 
Chicago, etc., R. Co., 31 Iowa 2zz; 
Anderson v. Kerr, 10 Iowa 233; Van 
Valtenburg v. Alberry, 10 Iowa 264. 



V. Flack, (Supm. Ct. Gen. T.) 4 N. Y. 
St. Rep. 564; Zung v. Howland, 5 Daly 
(N. Y.) 136; Chouteau v. Suydam, 21 
N. Y. 179; Boyd v. Foot. 5 Bosw. (N. 



Kansas. — Southwestern Mineral R. Y.) no; Thompson v. Lumley, 7 Daly 
Co. V, Cross, 7 Kan. App. 506. (N. Y.) 74; Andrews v. Brewster, 

Massachusetts. — lioyU v, Dixon, 97 (Supm. Ct. Gen. T.) 11 N. Y. Supp. 

138 Volume XVIIL 



P^wer «r Cout REMITTITUR. to Eater Bradttitnr. 

Sttta VnniilMd by Boeord. — It is accordingly often held that a 

remittitur of excessive damages will only be allowed where the 
record furnishes the data for determining the amount of the 
excess.* 

h. To Prevent Appeal. — Though a remittitur is often per- 
mitted where its effect will be to cut oflf the right to an appeal or 
writ of error,* it has been held that a remittitur cannot be entered 

324, 58 Han (N. Y.) 603; McGrath v. 2. Thompson v, Butler, 95 U. S. 694, 

Third Ave. R. Co., 9 N. Y. App. Div. wherein it was said: ** Undoubtedly 

141. the trial court may refuse to permit a 

Ohio. — Dolittle v. McCullough, 7 verdict to be reduced by a plaintiff upon 

Ohio St. 299; Cleveland, etc., R. Co. v. his own motion; and if the object of 

Himrod Furnace Co., 37 Ohio St. 434. the reduction is to deprive an appellate 

Oregon. — Mackey v, Olssen, 12 Ore« court of jurisdiction in a meritorious 

gon429. case, it is to be presumed the trial 

Pennsylvania, — Glenn v. Davis, 2 court will not allow it to be done. If, 

Grant's Cas. (Pa.) 153. however, the reduction is permitted, 

Rhode Island, — Forbes v, Howard, 4 the errors in the record will be shut out 

R. I. 364. from our re< examination in cases where 

Tennessee. — Memphis v. Kimbrough, our jurisdiction depends upon the 

12 Heisk. (Tenn.) 133. amount in controversy." See also 

Texas, — International, etc., R. Co. Pacific Postal Tel. Cable Co. v, O'Con. 

V. Overton, (Tex. Civ. App. 1896) 34 S. nor, 128 U. S. 394; Alabama Gold L. 

W. Rep. 165; Thomas v, Womack, 13 Ins. Co. v. Nichols, 109 U. S, 232; 

Tex. 580; Ft. Worth, etc., R. Co. v, Omaha First Nat. Bank v. Redick, no 

Viney, (Tex. Civ. App. 1895) 30 S. W. U. S. 224; Northwestern L. Ins. Co. p. 

Rep. 252; Missouri, etc., R. Co. v, Martin, 154 U. S. 640; Maine v. GiU 

Perry, 8 Tex. Civ. App. 78; Gulf, etc., man, 11 Fed. Rep. 215; Texas, etc., R. 

R. Co. V. Trawick, 80 Tex. 270;* Gal- Co. v. Saunders, 151 U. S. 105; Texas, 

veston, etc., R. Co. v. Duelm (Tex. etc., R. Co. v. Horn, 151 U. S. no; 

Civ. App. 1893) 23 S. W. Rep. 596; Nevada z/. Klum, 76 Iowa 428; Vorwald 

Galveston, etc., R. Co. v. Wesch, (Tex. v. Marshall, 71 Iowa 576; Milner v. 

Civ. App. 1893) 21 S. W. Rep. 1014, 85 Gross, 66 Iowa 252; Schultz v, Chi* 

Tex. 593; Galveston, etc., R. Co. v. cago, etc., R. Co., 75 Iowa 240; Bate- 

Daelin, 86 Tex. 450; The Oriental v. man v. Sisson, 70 Iowa 518. 

Barclay, 16 Tex. Civ. App. 193; Ft. In Iowa it has been held that aa 

Worth, etc., R. Co. v. Measles, 81 Tex. amendment may be made to the peti- 

474. tion after verdict and before adjoum- 

Vermont, — Chandler v. Spear, 22 ment of the term reducing the amount 

Vt. 388. claimed to less than one hundred dol- 

West Virginia, — Vinal v. Core, 18 lars, and thus defeat the right of ap- 

W. Va. I. peal. Wilson v. Hawke^e Ins. Co., 74 

Wisconsin. — Pavey v, American Iowa 212; Giger v, Chicago, etc., R. 

Ins. Co., 56 Wis. 221; Sprague v. Co., 80 Iowa 492. 

Brown, 40 Wis. 612; Potts v. Cooley, The rule, however, is otherwise after 

56 Wis. 45; Kavanaugh v. Janesvtlle, the adjournment of the term. Sharp 

24 Wis. 618; Stone v. Chicago, etc., R. v. Nelson, 93 Iowa 466. 

Co., 88 Wis. 98. In Looiriana it has been held that the 

United States. — Hazard Powder Co. plaintiff may render the case nnappeaU 

V. Volger, 58 Fed. Rep. 152, 158, 12 U. able by making a remittitur before 

S. App. 665, 675; Hansen v. Boyd, t6i judgment, but cannot do so after judg- 

U. S. 397. ment. State v, Lazarus, 34 La. Ann. 

1. Andrews z'. Brewster, 58 Hun (N. 864, 1117; Wolf v, Munzenheimer, 14 
^•)6o3, II N. Y. Supp. 324; Johnson La. Ann. 114; Le Blanc v. Pittman, 16 
f. Mullin, 12 Ohio 10; Ft. Worth, etc.. La. Ann. 430; State v. Judge, 21 La. 
R. Co. V. Measles, 81 Tex. 474; Inter- Ann. 728. But see Gayden v. Louis- 
national, etc.. R. Co. w. Wilkes, 68 Tex. ville. etc., R. Co., 39 La. Ann. 269; 
^17; International, etc., R. Co, v. New Orleans, etc., R. Co. v, McNeely, 
Braziil, 78 Tex. 314. 47 La. Ann. 1298, 

18 Encyc. PI. & Pr. — 9 VSi Volume XVIIL 



▼oluittrj Btmittitv. 



REMITTITUR. AUowmoe m Matter of Own**. 



for the sole purpose of defeating an appeal.* 

BemiMlon of Intoroot. — Where a suit is brought upon a special con- 
tract for a fixed sum upon which interest is legally due, the plain- 
tiff cannot remit the interest, thus reducing the claim, so as to 
deprive the defendant of his right to appeal.* 

c. As Against Objection of Losing Party. — The losing 
party cannot complain of the action of the court in directing or 
permitting the prevailing party to remit a part of his recover>^* 

TTT, ToiirvTAXT BsxiTTiTiFB — 1. Allowanoe as Matter of Conne. 
— A remittitur of a part of a recovery will be allowed as a matter 
of course when offered voluntarily.* 



1, Hansbrough v. Stinnett, 22 Gratt. jurisdictional amount of the supreme 

(Va.) 593. In this case there was a court. Block t/. Darling, 140 U. S. 234. 

verdict for five hundred dollars, the After Jnrisdiotion on Apjieal Has At- 

jurisdictional amount on appeal. The taehsd. — When the jurisdiction of the 

plaintiff, to defeat an appeal, entered supreme court on appeal has once at- 

a remittitur of five dollars. It was tached, it cannot be defeated by a 



said: ** The court is of opinion that 
the release given by the attorney of 
the plaintiff in the court below, of 
five dollars of the damages, amount- 
ing to five hundred dollars found 
by the verdict of the jury, was given 
for the purpose of depriving this 
CQurt of appellate jurisdiction in this by, 74 Ga. 739. 
case; that the said release for the said IlHnois, — Elgin 
purpose is unlawful and void; and that 
m regard to the question of Such juris- 
diction, the judgment of the court be- 
low must be considered as having been 



waiver or release of the amount of the 
judgment below in excess of the juris- 
dictional amount on appeal. New 
York El. R. Co. v. New York Fifth 
Nat. Bank, 118 U. S. 608. 

2. Howard v. Chamberlin, 64 Ga. 684. 

8» Georgia. — Central R. Co. v, Cros- 



V. Joslyn, 36 111. 
A pp. 301. 

Iowa, — McCoy v. Treichlcr, 90 Iowa 
I; Van Winter v. Henry County, 61 
Iowa 684; Duffy v. Dubuque, 63 Iowa 



rendered for the said sum of five hun- 171; Hurlbut v, Hardenbrook, 85 lotra 

dred dollars, the damages aforesaid, 606. 

instead of for the sum of four hundred Massachusetts. — Trischet v. Hamil- 

and ninety-five dollars, the residue of ton Mut. Ins. Co., 14 Gray (Mass.) 456. 



Missouri, — Mueller v. Hegney, 13 
Mo. App. 587. 

Ne%o York. — Carter v. Beck with, 128 
N. Y. 312. 

OyiiV?. — Pendleton St. R. Co. 



r. 



the said damages after deducting the 
said sum of five dollars.** See also 
Finch V. Hartpence, 29 Neb. 368; North 
V. Holroyd, L. R. 3 Exch. 69. 

Jndmsnt for Alimony. — A judgment 

for alimony for two hundred and fifty Rahmann, 22 Ohio St. 446; Durrell v. 

dollars per month, pending a suit for Boyd, 9 Ohio St. 72. 

divorce, is appealable, and cannot be Tennessee. — Branch v. Bass, 5 Sneed 

defeated by a remittitur on the part of (Tenn.) 366. 

the judgment creditor so that it shall Virginia. — James River, etc., Co. v, 

not exceed five hundred dollars, the Adams, 17 Gratt. (Va.) 435. 

jurisdictional amount on appeal. State West Virginia. — Vinal v. Core, 18 

V, Judge, 24 La. Ann. 601. W. Va. i. 

nUng of Oonntonlaim. — The amount Wisconsin. — Corcoran v. Harran, 55 

in dispute in a case where the defend- Wis. 121. 

ant files a counterclaim, being the United States. — Arkansas Valley 

aggregate of what is claimed by both Land, etc., Co. v. Mann, 130 U. S. 69; 

sides, and that being within the juris- Clark v. Sidway, 142 U. S. 682. 

diction of the United States Supreme ^, Alabama. — Hinson t/. Williamson, 

Court, on the disallowance of the de- 74 Ala. 180. 

fendant's counterclaim, the plaintiff California. — De Costa v. Massachu- 

cannot defeat the defendant's right to setts Flat Water, etc., Co., T7 Cal. 6x3. 

a writ of error by remitting enough of Colorado. — Chapin v. Goodell, 'a 

his judgment to bring it below the Colo. 608. 

180 Volume XVIII. 



Tdutiry BMoittitnr. 



REMITTITUR, AUowMioeuXattar of Course. 



SflBittitnr as to Joint Befondants. — It has been held that a remittitur 
of different sums in favor of different defendants on a joint judg^ 
ment against them and the rendition of separate judgments 
against them cannot be allowed.^ 

In Appellate Conrt. — The offer of a remittitur maybe made as 
well in the appellate as in the trial court,* 



Florida, — Schnabel ». Belts, 23 Fla. 
178. 

Georgia, — Aagusta R. Co. v. Glover, 
92 Ga. 132. 

Illinois, — Locke v, Duncan, 47 111. 
App. no; Marshall v. Freeman, 52 III. 
App. 42; Chicago, etc., R. Co. v. 
Grimes, 71 III. App. 397. 



Wisconsin, — Baker v, Madison, 62 
Wis. 137. 

United States, — Kentucky Bank v, 
Ashley, 2 Pet. (U. S.) 327. 

An Aflsignee in Bankmptoy who be- 
comes a party to an attachment sued 
out against the bankiupt before bis ad- 
judication may, after the attachment is 



Indiana, — Culbertson v, Munson, defeated, remit excessive damages re- 



I04lnd. 451; Harris </. Stale, 123 I nd. 
272 

Iowa, — Rowell v, Williams, 29 Iowa 
210; Bloom V, State Ins. Co., 94 Iowa 
359: McCoy V, Treichler. 90 Iowa i; 
Peliey v. Walker, 79 Iowa 142. 

Kansas, — Taggart v. Hunter, 5 Kan. 
App. 7. 

Kentucky, — Williams v, Murrell, 
(Ky. 1890) 13 S. W. Rep, X075. 

Louisiana. — Dicks v. Cash, 7 Mart. 
N. S. (La.) 361 ; Fitzgerald v, Boulat, 
13 La. Ann. 116. 

Missouri. — Waldhier v, Hannibal, 
etc., R. Co., 87 Mo. 37; State t*, Hope, 
121 Mo. 34. 



Nebraska, — McKay v. Hinman, 13 613. 



covered in an action on the attachment 
bond. Darcy v. Spivey, 57 Miss. 527. 

1. Chils t'. Gronlund, 41 Fed. Rep. 

505. 
Bamittitor as to Part of Defendants. — 

But whce jadgment is rendered in 
solido against all the defendants, a part 
of whom are infants and not liable for 
the entire amount of the judgment, the 
plaintiff will be permitted to remit in 
the appellate court that part of the 
judgment for which the infants are not 
properly holden. Horstmeyer v, Con- 
nors, 56 Mo. App. 115. 

2. California, — De Costa v. Massa- 
chusetts Flat Water, etc., Co., 17 Cal. 



Neb. 33; St. John v. Swanback, 39 Neb. 
84Z. 

New York, — La Motte v. Archer. 4 
E. D. Smith (N. Y.)46; Lawrence v. 
Church, 129 N. Y. 635. 

North Dakota, — Loverin-Browne Co. 
V. Buffalo Bank, 7 N. Dak. 569. 

Pennsylvania, — Furry v. Stone, I 
Ycates (Pa.) 186; Glenn v. Davis, 2 
Grant Cas. (Pa.) 153; Emerson v. 
Schoonmaker, 135 Pa. St. 437. 



Florida, — Schnabel v, Betts, 23 Fla. 
178. 

Illinois, — Chicago, etc., R. Co. v. 
Grimes, 71 III. App. 397. 

Indiana, — Culbertson v, Munson, 
104 Ind. 451; Harris v. State, 123 Ind. 
272. 

Iowa, — Peliey v. Walker, 79 Iowa 
142; Bloom V, State Ins. Co., 94 Iowa 
359: Rowell V, Williams, 29 Iowa 210. 

Kentucky. — Williams v. Murrell, 



South Dakota, — Kidder v, Aaron, 10 (Ky. 1890) 13 S. W. Rep. 1075. 
S. Dak. 256. Louisiana, — Fitzgerald v, Boulat, 13 

Tennessee, — Young v, Cowden, 98 La. Ann. 116. 



Tenn. 577. 

TVxtfj. — Underwood v, Parrott, 2 
Tex. 168; Robson v. Watts, 11 Tex. 
764; Hardison r. Hooker, 25 Tex. 91; 
Gulf, etc., R. Co, V, Trawick, 80 Tex. 
275; Russell V, Nail, 79 Tex. 664: In- 
ternational, etc., R. Co. r. Wilkes, 68 
Tex. 6x7; Barnes v. Darby, 18 Tex. 
Civ. App. 468; Beard v. Miller, (Tex. 
App. 1890) 16 S. W. Rep. 655; Thomae 
V. Zushlag, 25 Tex. Supp. 226; Ft. 
Worth, etc., R. Co. v. Measles, 81 Tex. 
474- 



Missouri, — State v, Hope, 121 Mo. 
34; Waldhier v. Hannibal, etc., R. 
Co., 87 Mo. 37. , 

Nebraska, — McKay v, Hinman, 13 
Neb. 33. 

New York. — La Motte v. Archer, 4 
E. D. Smith (N. Y.) 46; Lawrence v. 
Church, 129 N. Y. 635, 41 N. Y. St. 
Rep. 513. 

North Dakota, — Loverin-Browne Co. 
V. Buffalo Bank, 7 N. Dak. 569. 

Pennsylvania, — Furry v. Stone, I 
Yeates (Pa.) 1S6; Glenn v, Davis, % 



131 



Volume XVIII. 



▼olunUrj B«mittitiir, 



REMITTITUR. 



BaqviiitM «f Offnr. 



2. Aequiflites of Offer — Mast 8teto Amomit. — An offer to remit a 
portion of a verdict should state the amount the prevailing party 
is willing to remit* 

Moit Be Whole Amonnt ef Exeen. — The offer, of course, should be 
for the whole amount of the excess.* 



Grant Cas. (Pa.) 153; Emerson v. 
Schoonmaker 135 Pa. St. 437. 

Texas, — Ft. Worth, etc., R. Co. v. 
Measles, 8z Tex. 474; Barnes r. Darby, 
18 Tex. Civ. App. 468; Hardison v. 
Hooker, 25 Tex. 91. 

The Boetriiie Limited. — In Orange, 



should deem excessive, could oot cast 
upon the court the duty of performing 
the functions of the jury.*' 

TTnoertaiiity as to Sads of Propoed 
Judgment. — See also Central City v. 
Wilcoxen, 3 Colo. 566, wherein the 
court said: " The remittitur filed in 



etc., R. Co. V. Fulvey, 17 Gratt. (Va.) this cause is not of a character to en- 
366, it was said: '* Where a plaintiff title it to consideration. It is not for 



who has recovered a judgment which, a sum certain. 



* * • 



The element of 



as rendered, is clearly erroneous, seeks uncertainty as to the exact basis upon 

to avoid a reversal by striking out part which the judgment is founded and as 

of the judgment, it is incumbent on to the amount proposed to be remitted 

him to satisfy the court, either by the is so great that if we were to allow a 

materials in the record, or by fair pre- remittitur in this case an unsafe prec- 



sumption, that this can be done wiih- 
out injustice to the defendant. If he 
cannot do this, the defendant is en- 
titled to have the erroneous judgment 
reversed.** 

Otjeetion of Soretiee on Appeal Bond. — 
Sureties on the appeal bond will not be 
permitted to interpose an objection to 
a remittitur on the ground that the ap- 
pellant is insolvent and refuses to in- 



edent would be established. When a 
remittitur is filed for no certain sum it 
will be disregarded." 

Stating What Bemittitur Is For. — 1 1 is 
not necessary that the prevailing party 
shall state specifically upon the record 
what the remittitur is for; a general 
remittitur is sufficient. Elgin v. Jos- 
lyn, 136 III. 525. 

Mere OiFer to Bemit. — Where a sum 



demnify them on the appeal bond as he has been erroneously found by the jury 



had agreed to do. Warder v. Henry, 
117 Mo. 530. 

Beoord for Parposei of Bemittitnr. — In 
an action in the circuit court on several 
written instruments where the court 



has no jurisdiction as to one because it 519. 



against the defendant it will not cure 
the error for the plaintiff to offer to re- 
mit the amount thus erroneously 
allowed without actually doing so. 
Dula V. Cowles, 4 Jones L. (N. Car.) 



is for twenty dollars only, but renders 
judgment for the aggregate amount of 
all the instruments, on error to the 
supreme court the fact that only the 
transcript and not the original record is 



2. Warder v. Henry, 117 Mo. 530; 
Allen V, Claybrook, 58 Mo. 124; 
Ehrlich v. iEtna L. Ins. Co., 15 Mo. 
App. 579. 

Improper Cause of Action. — Where a 



before the court will not prevent it from judgment improperly embraces a cause 



entering a remittitur after error joined 
argument and submission to the court 
as to the amount of the instrument of 
which the circuit court had no jurisd.c- 
tion. Fulton v. Hunt, 3 Ark. 280. 
1. La Salle c^. Tift, 52 . Iowa 164, 



of action set up by an amended peti- 
tion, if a remittitur is entered to cure 
the error in the judgment, it must 
clearly appear that the remittitur cov- 
ers all of the judgment that was 
founded on the new cause of action. 



wherein the^ourt said: " The plaintiff Texas, etc., R. Co. v. White, 55 Tex. 

did not state the amount which he was 251. 

willing to remit; nor for what sum he ExoesiiTe Bemittitnr. — Where upon a 

was willing to take judgment. The plea of set-off of unliquidated damages 

court niight have fixed a certain sum the jury find for the defendant a ccr- 

for which the plaintiff should accept tain sum, a new trial should be granted 

judgment, or submit to a new trial, but if the defendant remits more than that 

it was entirely within the discretion of sum, as he cannot remit more without 

the court whether it would do so or admitting that the verdict cannot be 

not. The plaintiff, by an offer to remit sustained. Harms v, Jacobs, 4 III, 

so much of the verdict as the court App. 169. 

132 Volume XVIII. 



Tohmtory it«mittitv. REMITTITUR. time of Making. 

Coring InBuAdent Offtr. — Where, however, the prevailing party 
undertakes to avoid a new trial by entering a remittitur in the 
lower court, but fails to remit enough, he will be permitted to 
remit in the appellate court the correct amount.^ 

3. Kanner of Making — Filing with Clerk. — A party desiring to 
write off a portion of his recovery, should file a remittitur of such 
portion with the clerk of the court.* 

4. Votice. — A party voluntarily remitting a portion of his 
recovery should give notice thereof to the losing party.* 

6. Veoesdty of Order of Court. — No order of court is necessary 
for the remission by the prevailing party of a portion of his 
recovery.* 

6. Time of Making. — No general rule as to the time in which 
a remittitur should be made can be drawn from the authorities 
as the practice in this respect varies in the different jurisdictions. 

Bcfon Entry of Judgment. — In some jurisdictions it is held that 
a remittitur should be made before the entry of judgment,* 

1. Warder V. Henry, 117 Mo. 530. Amendment of Entry. — Under the 

Offar ICade and Overlooked. — Where statutes of TVjrax the prevailing party 

the prevailing party offers to remit a may remit a part of his recovery, and 

part of the judgment in the lower court where the remittitur does not appear to 

and the offer is overlooked the appellate be made in open court, the court may 

coart will order a credit for the amount at the same term and before any writ 

of the remittitur so made below, of error is sued out. correct the error in 

Grand Rapids, etc., R. Co. v. Diether, that particular according to the fact. 

10 Ind. App. 206. Pacific Express Co. v. Malin, 132 U. S. 

Admiaeion in Brief. — Although an ad- 531. 

mission in the brief of the plaintiff*s 8. German Mut. Farmer F. Ins. Co. 

counsel that a small overcharge in the v. Decker, 74 Wis. 556; Duffy v, 

judgment was caused by his error in Hickey, 68 Wis. 380; Killops v, 

writing, the judgment is not strictly a Stephens, 73 Wis. iii. 

remittitur, yet ft will authorize an Votioe of Applioation. — As the pre- 

amendment of the judgment by the vailing party may voluntarily remit a 

appellate court. Baudoin v. Tete, 10 portion of his recovery without any 

La. Ann. 69. order of court, no notice of an applica- 

Indenement on Exeeation. — Where a tion to the court to be permitted to re- 
judgment was rendered in the trial mi t need be given to the opposite party, 
cotirt for a small amount over the sum German Mut. Farmer F. Ins. Co. v, 
claimed in the petition, and the plain- Decker. 74 Wis. 556. 
tiff after discovering the error en- In Texas under a statute providing 
deavored to release such excess by an that where a judgment is reversible 
indorsement to that effect on the exe- only because it is excessive, the court 
cution, it was held that it was not such shall indicate to the party in whose 
a cause of error as justified any correc- favor judgment was rendered the excess 
tion by the appellate court. Foster v. and the time within which a remittitur 
Van Norman, i Tex. 636. See also may be filed, and that if it is so filed 
Rogers V. Brooks, 31 Ark. 194. the judgment shall be reformed and 

8< German Mut. Farmer F. Ins. Co. affirmed, it has been held that the pre- 

«'■ Decker, 74 Wis. 556; Duffy v. Hickey, vailing party need not file a motion to 

68 Wis. 380; Killops V, Stephens, 73 remit norneed he give the losing party 

'^is. III. notice of the remittitur. Galveston, 

Informal Semittitnr. — The fact that etc., R. Co. v, Duelm, (Tex. Civ. App. 

a remittitur was informally made in 1893) 24 S. W. Rep. 334. 

the court below will not warrant a re- 4. German Mut. Farmer F. Ins. Co. 

versal of the judgment on appeal. ». Decker. 74 Wis. 556. 

Phillips p. Evans, 64 Mo. 17. See also 6. Bealle v. Schoal, I A. K. Marsh. 

O'Shca V. Klrker, 4 Bosw. (N. Y.) 120. (Ky.) 475; Clarke v. Robinson, 15 R. I. 

183 Volume XVIII. 



<^oiua Qnmt of Bamlttitnr. REMITTITUR. Vtw trUl or Bomittitnr. 



During tho Torm. — In other jurisdictions it has been held that 
a remittitur may be made at any time during the term or while the 
proceedings are in fieri^ 

On Motion for Vow TriaL — It has also been held that a remittitur 
may be entered on motion for a new trial.* 

Bofore Bispoiition of Canso on Appoal. — According to another view 
a remittitur may be made in the appellate court at any time 
before the final disposition of the cause by the court.* 

IV. Optioval O&avt of Rexittitub — 1. Hew Trial or Bemit- 
titur. — It is a very common practice, and one sanctioned by 



231. See also The Steamboat Clarion 
V. Moran« 18 III. 50X. 

Beforo Yordict. — Where the evidence, 
beinjf all in, tends to show a demand 
for more than the jurisdictional sum, 
the excess should be Chen remitted in 
order to save the jurisdiction of the 
cause; a remittitur after verdict or find- 
ing comes too late. Reading v. Mead, 
16 111. App. 360. 

1. Davenportr. Bradley, 4 Conn. 309; 
Rowan v. People, 18 111. 159; Russell v. 
Hubbard, 59 111. 335; Wray v. Lister, 
2 Stra. mo; Cheveley ». Morris, 2 W. 
Bl. 1300. But see Cohen v. Smith, 33 
III. App. 344. 

After Appeal or Writ of Error. — A re- 



mittitur has been allowed in the trial 483. 



motion for a new trial has beeo over- 
ruled. 

8. Fulton V, Hunt, 3 Ark. 280; Exp, 
Hardy, 26 Ark. 94; Welsh v. Johnson^ 
76 111. 295: Bailey v. Heintz, 71 111. 
App. 189; McCormick Harvesting' 
Mach. Co. V. McKee, 51 Mich. 426; 
Dolittle V. McCuUougb, 7 Ohio St. 299; 
Theavenought v. Hardeman, 4 Yerg. 
(Tenn.) 565; Chad wick v, Meredith, 40 
Tex. 380: Galveston, etc., R. Co. v. 
Wesch, 85 Tex. 593: Edmunson v, 
Yates, 25 Tex. 373; Bushee v. Wright, 
I Pin. (Wis.) 104. But see Gulf, etc., 
R. Co. V. Key, (Tex. App. 1891) 16 S. 
W. Rep. 543; Howe v. Merrelf, 36 Tex. 
319; Chrisman v. Davenport, 21 Tex. 



court after an appeal has been taken 
or writ of error brought. Hunter v. 
Sherman, 3 111. 539; Lambert v. Black- 
man, I Blackf. (Ind.) 59; Averill Coal, 
etc., Co. V. Verner. 22 Ohio St. 372; 



On Bohearing. — There is, however, 
authority for the entry of a remittitur 
on a rehearing. Arnau v, Florida 
First Nat. Bank, 36 Fla. 395; Hyde v, 
Minneapolis Lumber Co., 53 Iowa 243; 



Doly w. Rigour, 9 Ohio St. 526; Fury Gere v. Council Bluffs Ins. Co., 67 

V. Stone, 2 Dall. (Pa.) 184. But see Iowa 272; Sharpe v, Johnston, 76 Mo. 

The Ashland, 19 Fed. Rep. 336. 660. 

Jadgment by Befkult. — Where there After Affirmance of Order Granting Hew 

is a judgment by default, a remittitur Trial. — A plaintiff who on motion for 

is seasonable though made after assess- a new trial refuses to remit a part of 

ment by the clerk and judgment for the verdict in his favor will not be per- 

the amount assessed. Linder v. Mon- mitted, after an order granting a new 

roe, 33 III. 388. trial has been affirmed on appeal, to 

2. Locke V. Duncan, 47 111. App. no. make a remittitur and have judgment 

In Texas it has been held that the directed in his favor for the amount of 

error of an excessive verdict is not the verdict less the amount remitted. 



cured by a remittitur pending a motion 
for a new trial entered upon intimation 
by the court that the verdict is exces- 
sive. Missouri, etc., R. Co. v. Perry, 
8 Tex. Civ. App. 78. 



Kohler v, Fairhaven, etc., R. Co., 8 
Wash. 455. 

After SatiflfiBietion of Ezeention. — In 
Miller v. Glass, 11 111. App. 560, it was 
held that where a judgment had been 



Nor can the supreme court pending rendered for a greater sum than that 

an application for a writ of error accept for which damages were claimed in the 

a remittitur. Fidelity, etc., Co. v. writ, the error could not be cured by 

Allibone, 90 Tex. 660. entering a remittitur in the appellate 

After Motion for Kew Trial Oyermled. court after execution had been issued 

— In Hahn v. Sweazea, 29 Mo. 199, it on such judgment and had been satis- 

was held that a remission of damages fied by payment before suing out the 

may be made by a plaintiff after a writ of error. 

134 Volume XVIII, 



Optittflftl Orut of BemitUtiir. REMITTITUR, K«w Trial w Bemittitvr, 

a long line of authorities, for the trial court, when of opinion that 
a verdict is excessive, to give the prevailing party the option to 
accept judgment for an amount which the court believes to be 
just or to submit to a new trial.* 

1. Alabama, — Smith v. Paul, 8 Port. Maine, — Howard v, Grovcr, 28 Me, 

(Ala.) 503; Richardson v. Birmingham 97; Jewell v. Gage, 42 Me. 247; Snow 

Couon Mfg. Co., 116 Ala. 381. v. Weeks, (Me. 1887) 8 All. Rep. 

Arisona. — Soaihern Pac. Co. v, 462. 

Tomlinson, (Ariz. 1893) 33 Pac. Rep. Massachusetts. — Doyle v, Dixon, 97 

710. Mass. 2od; King v. Howard, i Cash. 

CaUfornia. — Gregg v. San Fran- (Mass.) 137; Lambert t^. Craig, 12 Pick. 

CISCO, etc., R. Co., 59 Cal. 312; Clanton (Mass.) 199. 

V. Coward. 67 Cal. 373; Gardner v, Minnesota, — Stickney v. Bronson, 5 

Tatum. Si Cal. 370; George v. Law, i Minn. 215; Brown v, Doyle, 69 Minn. 

Cal. 363; Benedict v, Cozzens, 4 Cai. 543; Kopp v. Northern Pac. R. Co., 41 

381; Chapin v. Bourne, 8 Cal. 294; Minn. 310; Van Doren v. Wright, 54 

Clark V. Haber, 20 Cal. 196; Carpen< Minn. 455. 

tier V. Gardiner, 29 Cal. 160; Russell Mississippi. — Young v, Englehard, 1 

V. Dennison, 50 Cal. 243; Tobin v. How. (Miss.) 19 

Omnibus Cable Co., (Cal. 1893) 34 Pac. Missouri, — Ellis v, Mackie Conttr. 

Rep. 124. Co., 60 Mo. App. 67; McAllister v. 

District of Columbia, — Sinclair v. Mullanphy, 3 Mo. 38; Hoyt v. Reed, 16 

* Washington, etc., R. Co., 4 MacAr- Mo. 294; Bertbold v. Gruner, is Mo. 

thur (D. C) 13. App. 575; Ray t^. Thompson, 26 Mo. 

Florida, — Harrell v, Durrance, 9 App. 431; Loyd v. Hannibal, etc., R. 

Fla. 490. Co., 53 Mo. 509; Holmes v, Atchison, 

Georgia, — Loyd v. Hicks, 31 Ga. etc., R. Co., 48 Mo. App. 79; >Valser 

140: Harris v. Central of Georgia R. v. Thies, 56 Mo. 89. 

Co., 103 Ga. 495; Carlisle t/. Callahan, Montana, — Cunningham v. Quirk, 

78 Ga. 320; Central R. Co. v. Crosby, 10 Mont. 462. 

74 Ga. 739; Whaley v, Broadwater, 78 New Hampshire, — Belknap v, Bos- 

Ga. 336; Mayer v. Tufts, 76 Ga. 96. ton, etc., R. Co., 49 N. H. 358, 

Illinois, — Libby v, Scherman, 146 New York, — jansen v. Ball, 6 Cow. 

111. 540; Illinois Cent. R. Co. v. Robin- (N. Y.) 629; M'Connell v. Hampton, 12 

son, 58 111. App. 181; West Chicago St. Johns. (N. Y.) 234; Diblin v. Murphy, 

R. Co. V, Wheeler, 73 111. App. 368; 3 Sandf. (N. Y.) 19; Clapp v, Hudson 

Thomas V. Fischer, 71 III. 576; Albin v. River R. Co., 19 Barb. (N. Y.) 461. 

Kinney, 96 111. 214; Union Rolling Mill Ohio. — Durrell v, Boyd, 9 Ohio St. 

Co. r.Gillcn, 100 111. 52; Chicago, etc., 72; Bagley v. Bates, Wright (Ohio) 

R. Co. V. Cummings, 20 111. App. 333; 705; Clary v. Protection Ins. Co., 

McCansland v, Wonderly, 56 HI. 410; Wright (Ohio) 227; Douglas v. Day, 28 

lilinois Cent. R. Co. v. Ebert, 74 111. Ohio St. 175; Lear v, McMillen, 17 

399; Haymarket Theater Co. v. Rosen- Ohio St. 464. 

^^rg, 77 111. App. 183. Pennsylvania. — Myers v, Litts, 3 

/new. — Duffy v. Dubuque, 63 Iowa Lack. Leg. N. (Pa.) 363; McBride v. 

176; Brockman v, Berryhill, 16 Iowa Daniels, 92 Pa. St. 332; Crew v. Mc« 

183; Noel V. Dubuque, etc., R. Co., 44 Cafferty, 124 Pa. St. 200. 

Iowa 293; Callanan V. Shaw, 24 Iowa Rhode Island. — Forbes v, Howard. 

441; Baxter v. Cedar Rapids, 103 Iowa 4 R. I. 364. 

5Q9; Montelius v. Wood, 56 Iowa 254; South Carolina. — Guerry v. Kerlon, 

Kittemnan v, Chicago, etc., R. Co., 69 2 Rich. L. (S. Car.) 507; Atkinson v. 

Iowa 440; Collins v. Council Bluffs. 35 Fraser, 5 Rich. L, (S. Car.) 519. 

Iowa 432; Van Winter v. Henry Utah, — Reddon v. Union Pac. R. 

County, 61 Iowa 691. Co., 5 Utah 344. 

Kansas, — Union Pac. R. Co. v, Washington. — Winter v, Shoudy, 9 
Mitchell, 56 Kan. 324; Haldenian v. Wash. 52; McDonough v. Great North- 
Johnson, (Kan. App. 1898) 54 Pac. ern R. Co., 15 Wash. 244. 
Rep. 507. West Virginia, — Williams v. Balti- 

Kentucky, — Johnson v. Johnson, more, etc., R. Co., 9 W. Va. 33. 

(Ky. 1898) 47 S. W. Rep. 883. Wisconsin.—lliMii9.^v, Buell, 74 Wis* 

185 Volume XVIII. 






i.^.f 



OptioBAl Chrant of Bamittitiir. REMITTITUR, 



ft«T«rMl or Somittitar. 



I'. 



It' 



! *, 






\ 



DiMTotioB of Court. — But the exaction, as a condition of refusing 
a new trial, that the prevailing party shall remit a portion of the 
amount awarded by the verdict, is a matter within the discretion 
of the court. ^ 

2. Aeversal or Bemittitur. — It is also a very common practice 
for an appellate court, when it deeros the damages recovered to 
be excessive, and this is the only error, to require a remittitur of 
the amount considered excessive as a condition to the affirmance 
of the judgment.* 

14; Corcoran v. Harran, 55 Wis. 120. Southern California R. Co., iii Cal. 

United States, — Blunt v. Little, 3 668. 

Mason (U. S.) 102. Connecticut. — Smith v. Hall, 69 

As to necessity of giving option of Conn. 651. 

new trial see supra, ll. 4. Necessity of Florida, — Gunning v. Heron, 25 

Giving Option of New Trial. Fla. 846. 

1. Chapin v. Bourne, 8 Cal. 294; Georgia, — Boram z'. Thweatt, 45 Ga. 
Davis V, Southern Pac. Co., 98 Cal. 94; Richmond, etc., R. Co. v. Benson, 
13; Anderson v, Jenkins, 99 Ga. 299; 86 Ga. 203. 

Mayer :•. Tufts, 76 Ga. 96; Cleveland, Illinois, — Daube v, Nessler, 50 HI. 
etc., R. Co. V. Beckett, 11 Ind. App. App. 166; McNail v, Welch, 21 111. 
547; Browning v, Merritt, 61 Ind. 425; App. 378; North Chicago St. R. Co. v. 
Godfrey v, Moser, 66 N. Y. 250; Gumb Cotton, 140 III. 486. 
V. Twenty-third St. R. Co., 58 N. Y. /W/aiw. — H. G. Olds Wagon Works 
Super. Ct. I, 559; Kennedy xk Oregon v. Coombs. 124 Ind. 62; Pancoast v. 
Short Line R. Co., (Utah 1898) 54 Pac. Travelers' Ins. Co., 79 Ind. 172; Trent- 
Rep. 988; Winter v, Shoudy, 9 Wash, man v, Wiley, 85 Ind. 33; Grand 
52; Northern Pac. R. Co. v, Herbert, Rapids, etc.. R. Co. v. Diether, 10 Ind. 
116 U. S. 642; Arkansas Valley Land, App. 2oi5; Simpson v. Shafer, 20 Ind. 306. 
etc., Co. V, Mann, 130 U. S. 69; Iowa, — Thompson v. Purnell, 10 
Thompson v, Butler, 95 U. S. 694. Iowa 205; Anderson v, Kerr, 10 Iowa 

2, Arkansas, — Fowler «/. Johnson, ii 233; Van Valtenburg v, Alberry, 10 
Ark. 280; Hirsch v, Patterson, 23 Ark. Iowa 264; Austin v. Burgett, 10 Iowa 
112; £xp. Hardy. 26 Ark. 94; Hamleti 302; Payne v. Biilingham, 10 Iowa 360; 
V, Tallman, 30 Ark. 505; Dodds v. Thrifts. Redman, 13 Iowa 25; Knapp 
Roane, 36 Ark. 511; Ferguson v. Far- v. Miller, 13 Iowa 596; Pelley v, 
gason, 38 Ark. 238; South Western Walker, 79 Iowa 142; Union Mercantile 
Tel., etc., Co. v. Benson, 63 Ark. 283; Co. v. Chandler, 90 Iowa 650; Hyde r. 



Reasoner y. Brown, 19 Ark. 234. 

California. — Doll v. Feller, 16 Cal. 
432; Coiton V. Onderdonk, 69 Cal. 155; 
Granger Business Assoc. z\ Clark, 84 
Cal. 201; Mascarel v, RafTour, 51 Cal. 
242; Behlow r. Shorb, 91 Cal. 141; 
Carpentier v. Gardiner, 29 Cal. 160; 
Chapin v. Bourne, 8 Cal. 294; Clark v. 



Minneapolis Lumber Co., 53 Iowa 243; 
Gere v. Council Bluffs Ins. Co., 67 Iowa 
272; Brentner 7j, Chicago, etc., R. Co., 
68 Iowa 530; Ketchum z. Larkin. 88 
Iowa 215; Cooper v. Mills County, 69 
Iowa 350; Keyser v. Kansas City, etc., 
R. Co., 56 Iowa 440; Noel v. Dubuque, 
etc., R. Co., 44 Iowa 293; Lombard v. 



Huber, 20 Cal. 196; Harrison v. Pea- Chicago, etc., R. Co., 47 Iowa 494; 

body, 34 Cal. 178; Russell f. De unison, McKinley v, Chicago, etc., R. Co., 44 

50 Cal. 243; Atherton v. Fowler, 46 Iowa 314; Howe i/. Sutherland, 39 Iowa 

Cal. 323; Dreyfous v, Adams, 48 Cal. 484; Sherman v. Western Stage Co., 24 

131; Clanton z/. Coward, 67 Cal. 373; Iowa 517. 

Durfee v, Garvey, 78 Cal. 546, Love- Kansas. — Educational Assoc, v, 

land V. Gardner, 79 Cal. 317; Gardner Hitchcock, 4 Kan. 36; Kansas City, 

V, Tatum, 81 Cal. 370; De Costa v. etc., R. Co. v, Kier, 41 Kan. 671; State 

Massachusetts Flat Water, etc., Co., 17 v, Durein, 46 Kan. 695; Fort Scolt, 

Cal. 613; MuUer r. Boggs. 25 Cal. 175; etc., R. Co. v. Tubbs, 47 Kan. 630; 

Eames v. Haver, iii Cal. 401; Tarbeil Frankhouser v. Cannon, 50 Kan. 6ai; 

V, Central Pac. R. Co., 34 Cal. 616; George R. Barse Live Stock, etc., ^^• 

Kinsey v, Wallace, 36 Cal. 462; Phelps v, Guthrie, 50 Kan. 476; Dennis v, 

f. Cogswell, 70 Cal. 201; Sloane v, Benfer, 54 Kan. 527. 

136 Volume XVIII. 



■A 



(^ptioukl dfmnt of Btmittitar. REMITTITUR. Time of Exerciie of OptloA« 






& Time of Ezeroiie of Option. — The party recovering an exces- 
sive judgment will be given a reasonable time within which to 

iVtfiif/. — Snow tf. Weeks, (Me. 1887) 58; Pierce v. Wood. 23 N. H. 519; 

8 Atl. Rep. 462; Howard v. Grover, 28 Willard v. Stevens, 24 N. H. 271. 

Me. 07. New York, — Sackett r. Thomas, 4 

Minnesota, — Becker v. Bohmert, 63 N. Y. App. Div. 447; Fischer v. Blank, 

Minn. 403. 138 N. Y. 671. 53 N. Y. St. Rep. 293: Vail 

Mississippi. — Chicago, etc.. R. Co. v. Reynolds, 118 N. Y. 297; Sears r. 

V. Jarreti, 59 Miss. 470. Conover, 3 Keyes (N. Y.) 113; Hayden 

Missouri, — Waldliier v. Hannibal, v, Florence Sewing Mach. Co., 54 N. 

etc., R. Co., 87 Mo. 37; Smith v. Wa- Y. 221; Jenks v. Van Brunt, (Supm. 

bash, etc., R. Co., 92 Mo. 374; Burdict Ct. Gen. T.) 6 Civ. Pro. (N. Y.) 158; 

V. Missouri Pac. R. Co., 123 Mo. 221, Boyd v. Foot. 5 Bosw. (N. Y.) no; Mc- 

45 Am. St. Rep. 528; Furnish v. Mis- Auley v. ^[iIdrum, (C. PI. Gen. T.) 9 

souri Pac. R. Co., 102 Mo. 456; State Abb. Pr. (N. Y.)i98; Ayraultt'. Pacific 

%. Hope. 121 Mo. 34; Miller v, Hardin, Bank, (N. Y. Super. Ct. Gen. T.) i 

64 Mo. 545; Clark v. Bullock, 65 Mo. Abb. Pr. N. S. (N. Y.) 381; Bunten v, 

535; Hahm v. Cotton, 136 Mo. 216; Orient Mut. Ins. Co., 8 Bosw. (N. Y.) 

Franklin V. Haynes, 119 Mo. 566; West 448; Corning v. Corning, 6 N. Y. 97; 

V. Creve Coeur Lake Ice Co , 19 Gansevoort Freezing, etc., Co. v. Wes. 

Mo. App, 547; Hartman v. Louisville, selsCo.. (N. Y. Super. Ci. Gen. T.)29N. 

etc., R. Co., 48 Mo. App. 619; Warder Y. Supp. 590; Schenck v. Marx, (Supm. 

Ct. Gen. T.) 5 N. Y. Supp. 309; Clapp 

V. Hudson River R. Co , 19 Barb. (N. 

Y.)46i; Potter v. Thompson, 22 Barb. 

(N. Y.) 87; Sears v. Conover, 34 Barb. 

(N. Y.) 330; La Motte v. Archer. 4 E. 

D. Smith (N. Y.) 46; Griffiths v. Hard- 
41 N. Y. 464; Boehm v. 

Shedlinsky, (C. PI. Gen T.) 15 N. V. 

Supp. 974; De Lavalette v. Wendt, 11 

Hun (N. Y.) 432; Hanson v. Aikman, 

2 Silv. Sup. (N. Y.) 528, 6 N. Y. Supp. 

366; Holmes v. Jones, 121 N. Y. 461; 

Bishop V, Autographic Register Co , 19 



r. Henry, 117 Mo. 530; Pierce r 

Lewder, 54 Mo. App. 25; Oppliger 

V, Sutton, 50 Mo. App. 348; Rodney v, 

St. Louis Southwestern R. Co.. 127 

Mo. 676; HoUender v, Koetter, 20 

Mo. App. 79; Henry v, Bassett, 22 Mo. 

App. 667; Nicholds v. Crystal Plate enbergh. 

Glass Co., 126 Mo. 55; State v, Mc- 

Hale, 16 Mo. App. 478; Auchincloss r. 

Frank, 17 Mo. App. 41. 

Montana, — Kennon v, Gilmer, 9 
Mont. 108. 

Nebraska, — Sioux City, etc., R. Co. 
V. Finlayson, 16 Neb. 578; Boston Tea N. Y. App. Div. 268; Coppins v. New 



Co. V. Brubaker, 26 Neb. 409; Meharry 
V, Halligan, 29 Neb. 565; Omaha, etc., 
R. Co. V. Brady, 39 Neb. 27; Friend v. 
Ingersoll, 39 Neb. 717; St. John ?•. 
Swanback, 39 Neb. 841; Omaha, etc., 



York Cent., etc., R. Co., 48 Hun (N. 
Y.) 292; Silberstein v, Houston, etc., 
R. Co.. (Supm. Ct. Gen. T.) 4 N. Y. 
Supp. 843; Andrews v. Brewster, 124 
N. Y. 433; Simms v, Calcagnino, (N. 



R. Co. V, Ryburn, 40 Neb. 87; Fre- Y. City Ct. Gen. T.) 21 Misc. (N. Y.) 



mom, etc., R. Co.* v, Leslie, 41 Neb. 
159; Gordon v. Little, 41 Neb. 250; 
Culbcrtson Irrigating, etc., Co. v. Wild- 
man, 45 Neb. 663; Chicago, etc., R. 
Co.?. Archer, 46 Neb. 907; Regier v, 
Shreck, 47 Neb. 667; Fremont, etc., R. 
Co. V, Leslie, 41 Neb. 159; Carter v. 
Muoson, 27 Neb. 172; Omaha, etc., R. 
Co. t. Brady, 39 Neb. 27; Wonderlick gon 1898) 52 Pac. Rep. 520. 



787; Kolsch V. Jewell, 21 N. Y. App. 
Div. 581; Doran v. Brooklyn, etc.. 
Ferry Co., (Brooklyn City Cl. Gen. T.) 
19 N. Y. Supp. 172. 

Ohio, — Marietta Iron Works v, Lolti- 
mer. 25 Ohio St. 621 ; Lear v. McMillen, 
17 Ohio St. 464. 

Oregon, — Cochran v. Baker, (Ore- 



^ Walker, 41 Neb. 806; Haas v. Bank 
of Commerce, 41 Neb. 754; Giiford v, 
Faubion, 27 Neb. 41; Grand Island, 
«c., R. Co. V, Swinbank, 51 Neb. 

521. 

Nevada.-^ Hastings v, Johnson, 2 
«ev. 190. 

^evf Hampshire, — Odiin v. Gove, ^i 
{J-H.465; Wendell v, Moulton, 26 N. 
"•41; Sanborn v, Emerson, 12 N. H. 



Tennessee. — Louisville, etc., R. Co. 
V, Wallace. 91 Tenn. 35. 

Texas, — International, etc., R. Co. 
V. Overton, (Tex. Civ. App. 1896) 34 S. 
W. Rep. 165; Sabine R. Co. v. Johnson, 
(Tex 1888) 7 S. W. Rep. 378; Missouri 
Pac. R. Co. V. Johnson, 72 Tex. 95; 
Gulf, etc., R. Co. V. Key, (Tex. App. 
1891) 16 S. W. Rep. 543; Jackel v, 
Reiman, 78 Tex. 588; Mayer v. Duke, 



137 



Volume XVin. 



Irron OarabU 



REMITTITUR, 



by Bamittitvr. 



exercise the option given him of remitting a part of his recovery 
or of submitting to a new trial.* 
V. Ebsoes Cubable bt Bemittitub — 1. In OeneraL — The rule 

may be generally stated that an excessive recovery of damages is 
curable by a remittitur of the excess.* 



72 Tex. 445; Galveston, etc., R. Co. v. 
Neel. (Tex. Civ. App. 1894) 26 S. W. 
Rep. 788; Galveston, etc., R. Co. v. 
Duelm, (Tex. Civ. App. 1893) 23 S. W. 
Rep. 596; Gulf, etc., R. Co. v, Tra- 
wick, 80 Tex. 270; Zapp t/. Michaelis, 
58 Tex. 270; Gregory v. Coleman, 3 
Tex. Civ. App. 166; Chadwick v. 
Meredith, 40 Tex. 380; Vance v. Lind- 
sey, 60 Tex. 286; Taylor v. Hall, 20 
Tex. 211; Edmonson v. 
Tex. 250; Missouri Pac. 
Shuford, 72 Tex. 165. 

Washington. — • King 
Ferry, 5 Wash. 536, 34 
880. 

Wisconsin, — Kavanaugh v. Janes- 
ville, 24 Wis. 618; Bigelowz/. Doolittle, 
36 Wis. 115; McHughr. Chicago, etc., 
R. Co., 41 Wis. 75; Baker v, Madison, 



Garnett, 
R. Co. 



33 

V, 



County V, 
Am. St. Rep. 



ment upon a remittitur made after the 
time but within the term. Miles v. 
Weston, 60 111. 361. 

Amendment of Order. — In Crew v. 
McCafferty, 124 Pa. St. 200, a rule for 
a new trial was discharged on condition 
that the plaintiff file a remittitur within 
ten days and in copying the order on 
the docket the clerk omitted the words 
" within ten days.** On the thirtieth 
day thereafter the plaintiff filed the re- 
mittitur and caused iudgment to be 
entered for the amount limited and 
subsequently upon a rule to strike off 
the judgment the court directed the 
original order to be corrected so as to 
read '* within thirty days." It was 
held that the latter order was an altera- 
tion, not an amendment, and its effect 
was to deprive the defendant of a new 



62 Wis. 137; Smith v. Schulenberg, 34 trial, the right to which had become 



Wis. 41; Wright v, Roberts, 22 Wis. 
161; Zitske V, Goldberg, 38 Wis. 216; 
Strong V. Hooc, 41 Wis. 659; Diedrich 
V, Northwestern Union R. Co., 47 Wis. 
662; Pavey v, American Ins. Co., 56 
Wis. 221; West r. Milwaukee, etc., R. 
Co., 56 Wis. 318. 

United States. — Kennon v. Gilmer, 
131 U. S. 22; Loewerv. Harris, 57 Fed. 
Rep. 368; Washington, etc., R. Co. v. 
Harmon, 147 U. S. 571; Hansen v. 



absolute, and. beyond the power of the 
court to interfere with it, and was 
therefore error. 

2. Alabama. — Lenoir v. Broadhead, 
50 Ala. 58; Smith v. Paul, 8 Port. 
(Ala.) 503. 

Arkansas. — Hamlett r. Tallman, 30 
Ark. 505; Ferguson v. Fargason, 38 
Ark. 238; Hirsch v. Patterson, 23 Ark. 
112; Reasoner v. Brown, 19 Ark. 234; 
Dodds V. Roane, 36 Ark. 511; St. 



Boyd, 161 U. S. 397; Koenigsberger Louis, etc., R. Co. v. Hagan, 42 Ark. 

V. Richmond Silver Min. Co., 158 U. S. 122; St. Louis, etc., R. Co. v. Trimble, 

41; Hopkins r. Orr, 124 U. S. 510. 54 Ark. 354: Southwestern Tel., etc., 

1. Cooper V. Mills County. 69 Iowa Co. v. Benson, 63 Ark. 283. 

350; Campbell v. Loeb, 72 Minn. 76; California, — MuHer v. Boggs, 25 

Carters/. Munson, 27 Neb. 172; Omaha, Cal. 175; De Costa v. Massachusetts 



etc., R. Co. V. Brady, 39 Neb. 27; 
Washington, etc., R. Co. v. Harmon, 
147 U. S. 571. 

Thirty Days is very often designated 
as the time within which the prevailing 
party should exercise his option of re- 
mitting or of submitting to a new trial. 
Brentner v. Chicago, etc., R. Co., 68 
Iowa 530; Curran v. Percival, 21 Neb. 
434; Orleans v. Perry, 24 Neb. 831; 
Averill Coal, etc., Co. v, Verner, 22 
Ohio St. 372. 

WaiTor of Limitation. — Where, upon 
motion, an order for a new trial is 
made unless a remittitur is entered 
within a certain time, the court may 
waive the limitation and enter judg- 



Flat Water, etc., Co., 17 Cal. 613; 
Chapin z-. Bourne, 8 Cal. 294; Patter- 
son V. Ely, 19 Cal. 28; Piercer. Payne, 
14 Cal. 419; Behlow v. Shorb, 91 Cal. 
141. 

Colorado, — Teller v, Hartman, i6 
Colo. 447. 

Delaware. — Benson v, Wilmington, 
9 Houst. (Del.) 359. 

Florida. — Florida R., etc., Co. v. 
Webster, 25 Fla. 394. 

Illinois. — Illinois Cent. R. Co. r. 
Gilbert, 51 111. App. 404; North Chi- 
cago St. R. Co. V. Shreve, 70 111. App. 
666; Evanston v. Fitzgerald, 37 III. 
App. 86; Chicago, etc., R. Co. r. 
Hogan, 56 111. App. 577; Henniag v. 



138 



Volume XVIII, 



*^ Cwabto REMITTI TUR. by Bemittitnr. 

V^oindtf of Gountt or Oauiot of Action. — It has been held that where 
2 declaration contains counts setting up different causes of action 
and damages are assessed severally on the separate counts, a mis- 
Probst, 66 111. App. 159; Gammon v, ston, 76 Mo. 660; Muldrow v. Missouri, 
Havelock, 40 III. App. 268; Marshall etc., R. Co., 62 Mo. App. 431; Oppli- 
9. Freeman, 52 111. App. 42. gar v. Sutton, 50 Mo. App. 348; West 
Indiana, — Phillips v. Nicholas, 3 v. Creve Coeur Lake Ice Co., 19 Mo. 
Blackf. (lad.) 133; Devore v. McDer- App. 547. 

mitt, 47 Ind. 234; Line v. State, 131 Montana. — Cook v. Greenough, 14 

lad. 468; Bauer r. Oldendorf, 13 Ind. Mont. 352. 

App. 397; Harvey v, Baldwin, 124 Nebraska. — Regier v. Shreck, 47 

Ind. 59. Neb. 667; Lenzen r. Miller, 51 Neb. 

Iowa, — Newbury v, Getchell, etc., 855; St. John s/. Swanback, 39 Neb. 

Lumber, etc., Co., 100 Iowa 441; 841; Gifford v. Faubion, 27 Neb. 41; 

Knapp r. Miller. 13 Iowa 596; Calla- Fremont, etc., R. Co. v. Leslie, 41 

nan v, Shaw, 24 Iowa 441; Howe &. Neb. 159; Mullen 7/. Morris, 43 Neb. 

Sutherland, 39 Iowa 484; Montelius v, 596; Friend v. IngersoU, 39 Neb. 717; 

Wood. 56 Iowa 254; Buetzier v. Jones, Omaha, etc., R. Co. v. Ryburn, 4oNeb. 

85 Iowa 721. 87; Van Etten v. Selden, 36 Neb. 209, 

Kansas. — Broquet v. Tripp, 36 Kan. AVw Hampshire, — Jacobs v, Shorey, 

701; Florence, etc., R. Co. v. Pember, 48 N. H. 100. 97 Am. Dec. 586. 

45 Kan. 625; Wichita, etc., R. Co. v. New York. — Schenck v. Marx, 

Gibbs, 47 Kan. 274. (Supm. Ct. Gen. T.) 5 N. Y. Supp. 309; 

Kentucky, — Dayton v. Gardner, Bunten v. Orient Mut. Ins. Co., 8 

(Ky. 1897) 40 S. W. Rep. 779. Bosw. (N. Y.)448; Lawrence ». Church, 

Louisiana, — Amet v. Boyer, 42 La. (Ct. App.) 41 N. Y. St. Rep. 513. 129 N. 

Ann. 831; Haselmeyer v, McLellan, 24 Y. 635; Wolff v. Hvass, (N. Y. Super. 

La, Ann. 629. Ct. Gen. T.) 11 Misc. (N. Y.) 561: Dev- 

Maine. — Butler v. Millett, 47 Me. lin v. New York, (C. PI. Gen. T.) 4 

492. Misc. (N. Y.) 106; Andrews v. Brew- 

Massachusetts. — King v. Howard, i ster, 124 N. Y. 433. 

Cosh. (Mass.) 137. Ohio. — Cleveland, etc., R. Co. v, 

Michigan. — Hines v. Darling, 99 Him rod Furnace Co., 37 Ohio St. 434; 

Mich. 47; Tuttle v. White, 49 Mich. Sibila v. Bahney, 34 Ohio St. 399; 

407; Tubbs V. Dwelling- House Ins. Hanes v. Tiffany, 25 Ohio Si. 554. 

Co., 84 Mich. 646. Pennsylvania, — Graham v. Keys, 29 

Mississippi. — Buck v. Little, 24 Pa. St. 189: Pontius v. Com., 4 W. & 

Miss. 463; Dean v. Tucker, 58 Miss. S. (Pa.) 52. 

4B7. South Carolina. — Guerry v, Kerton, 

Missouri. — Ray v. Thompson, 26 2 Rich. L. (S. Car.) 507. 

Mo. App. 431; Hartman v. Louisville, Tennessee. — McKinley v. Beasley, 5 

etc., R. Co., 48 Mo. App. 619; McCul- Sneed (Tenn.) 170. 

longh u. Phoenix Ins. Co., 113 Mo. 606; Texas. — Butt v, Schrimpf, 31 Tex. 

Holmes v. Atchison, etc., R. Co., 48 601; Ft. Worth, etc., R. Co. r. Viney, 

Mo. App. 79; Sherman v. Commercial (Tex. Civ. App. 1895) 30 S. W. Rep. 

Printing Co.. 29 Mo. App. 31; Pierce 252; Houston, etc.. R. Co. v. Pereira, 

tr. Lowder, 54 Mo. App. 25; Hatton v. (Tex. Civ. App. 1898) 45 S. W. Rep. 

Randall, 48 Mo. App. 203; Crawford 767; Cotter v. Parks, 80 Tex. 539; 

V. Doppler, 120 Mo. 362; State z*. San- King v. Bremond, 25 Tex. 637; Gold- 

Jord, 127 Mo. 368; Cape Girardeau v. stein v. Cook, (Tex. Civ. App. 1893) 22 

Fisher, 61 Mo. App. 509; State v. S. W. Rep. 762; Galveston, etc., R. 

Hope, 121 Mo. 34; Western Boatmen's Co. v. Duelin, 86 Tex. 450; Western 

Bencv. Assoc, v. Kribben, 48 Mo. 37; Union Tel. Co. v, Jobe, 6 Tex. Civ. 

Smith r. Wabash, etc., R. Co., 92 Mo. App. 403; Walker v. Simkins, 2 Tex. 

359; Ibers V, 0*Donnell, 25 Mo. App. App. Civ. Cas., g 71; Galveston, etc., 

i»; Brooking v. Shinn, 25 Mo. App. R. Co, v. Neel, (Tex. Civ. App. 1894) 

«77; Buse r. Russell, 86 Mo. 2C9; 26 S. W. Rep. 788; Galveston, etc., R. 

Witc t. N. O. Nelson :Mfg. Co., 53 Co. Z'. Duelm, (Tex. Civ. App. 1893)23 

Mo. App. 337; Hume Bank v. Hart- S. W. Rep. 596; Nunnally v, Talia- 

"ock, 56 Mo. App. 291; Stone v. Bar- ferro. 82 Tex. 286; International, etc., 

^^H Mo. App. 15; Sharpe v. John- R. Co. v. Wilkes, 68 Tex. 617; Sabine, 

139 Volume XVIII. 



ImH CniMU 



REMITTITUR. 



by ftmdttituf . 



joinder of counts or causes of action may be cured by remitting 
the damages on the bad counts and taking judgment only on those 
that can legally stand together.* 

2. Improper Admissioii or Ezdusion of Eyidenoe. — Error in the 
improper admission or exclusion of evidence may often be cured 
by a remittitur.* 

3. Verdict in Ezoeas of AA Damnum. — By the great weight of 
authority, a verdict assessing damages in excess of the ad damnum 
laid in the writ, or the amount claimed in the declaration or com- 
plaint, may be cured by a remittitur of the excess.' 

etc.. R. Co. V. Hadnot, 67 Tex. 503: Inability to Determine Efbet of Xzelii^ 
Beard v. Miller, (Tex. App. 1890) 16 S. lion. — In Olcott v. Hanson, 12 Mich. 
W. Rep. 655; Missouri, etc., R. Co. v. 452, which was an action on a note, the 
Warren, 90 Tex. 566; Western Union defendant pleaded a set-ofif and pay- 
Tel. Co. r. Zane, 6Tex. Civ. App. 585; ment and offered evidence of a pay- 
Clapp V, Walters, 2 Tex. 130; Taylor ment of five dollars which was 
V, Hall, 20 Tex. 211; Clappzf. Walters, excluded on the ground thai, the item 
2 Tex. 130; lilies v, Diercks, 16 Tex. was not mentioned in the bill of par- 
251. ticulars of set-off. The plaintiff hav- 

United States, — Loewer z^. Harris, 57 ing recovered judgment was allowed 

Fed. Rep. 368. by the trial court to remit five dollars 

England. — Leeson v. Smith, 4 N. & of the amount with a view to caring 



M. 304, 30 E. C. L. 372. 

Error in Initniction. — Error in in- 
structing the jury in an action for 



the error. It was held that the error 
was not cured, as by rejecting this evi- 
dence the court in effect denied the de- 



death by wrongful act that they could fendant the right to prove any item of 

find the plaintiffs' damages at a sum payment without notice and the su- 

not exceeding $5,000 is cured by a re- preme court could not therefore say 

mittitur of $2,500. Illinois Cent. R. what other payments may have been 

Co. V, Gilbert, 51 III. App. 404. But excluded by this ruling, 

where a cause is submitted to a jury Failure to Sabmit Qneotion to Jvry. — 

under absolute instructions, if the find- In an action to recover the enhanced 

ing is for the plaintiff to make the ver- damages given by statute for the 

diet for $400. and they do so, it is erro- wrongful cutting of logs, an error of 

neous on appeal to affirm the judgment the court in treating a statement in the 

on reducing the recovery to $175 (the defendants' affidavit for confession of 

statutory maximum limit), as the jury, judgment that the cutting was by mis- 

if allowed their discretion, might have, take as an admission of the pleadings 

found for a less sum. Burling v. and taking the question from the jury 



Gunther. (C. PI. Gen. T.) 63 How. Pr. 
(N. Y.) 68. 

1. Haskell v. Bo wen. 44 Vt. 585. 

9. Fordyce v, Hardin, 54 Ark. 554; 
Owen V, Crum, 20 Mo. App. 121; Wil- 



is cured by the plaintiff's remitting 
from the judgment the excess above 
the lowest estimate given by the de- 
fendants' witnesses and notifying the 
defendants' attornevs thereof before 



son V. Adams, 15 Tex. 323; Texas appeal. Underwood v, Paine Lumber 

Trunk R. Co. v, Johnson, (Tex. Civ. Co., 79 Wis. 592. See also Hines z/. 

App. 1893) 25 S. W. Rep. 740. Darling, 99 Mich. 47. 

Ezolnsion of Deposition. — In Ander- 8. California, — Clanton v. Coward, 

son V. Tarpley, 6 Smed. & M. (Miss.) 67 Cal. 373; Pierce v. Payne, 14 Cal. 

507, which was an action on an open 419. 

account, the defendant offered a depo- Colorado, — Duncan t/. Whedbee, 4 

nition showing part payment of the ac- Colo. 143; Litchfield v. Daniels, i Colo, 

count sued on but it was excluded. It 268; Winne v, Colorado Spring Co., 3 

was held that if the plaintiff would Colo. 155; Central City r. Wilcoxen, 3 

enter a remittitur of the amount shown Colo. 566; Consolidated Gregory Co. ». 

by the deposition to have been paid the Raber, i Colo. 513. 

supreme court would render judgment Georgia, — Hunnicutt v, Perot, 100 

for the balance. Ga. 312; Raney v. McRae, 14 Ga. 589; 

140 Volume XVIII. 



»wn Cvabto REMITTITUR. by Bemitlitur. 

^vdjaant in Exoen of Penalty in Bond. — Where the judgment in an 

action on a bond is in excess of the penalty designated in the 

Griffin r. Witherspoon, 8 Ga. 113; Chtlders, 73 Mo. 484; Hif^gs tr. Hunt, 

Hendry v. Hurst, 22 Ga. 312. 75 Mo. 106; Burkholder v, Rudrow. 19 

Illinois, — Linder v, Monroe, 33 III. Mo. A pp. 60; Johnson v, Robertson, i 

369; Louisville, etc., R. Co. &. Harlan, Mo. 615; Brooking v. Shinn, 25 Mo. 

31 111 App. 544; Wlnslonr r. People, App. 277; Oppliger v. Sutton, 50 Mo. 

117 111. 152; People V. Steele, 7 111. App. 348; Hoyt v. Reed, 16 Mo. 294; 

App. 20; Dowling u. Stewart, 4 111. Atwood v. Gillespie, 4 Mo. 423. 

193; Fournier v. Faggott, 4 111. 347; A^<p»<i</a. — Hastings v. Johnson, a 

Chenotv. Lcfevre, 8 111. 637; Pickering Nev. 190. 

r. Pulsifer, 9 111. 79; Wood ». Kingston New Hampshire, — Pierce v. Wood, 

Coal Co., 48 111. 356; Gillet v. Stone. 2 23 N. H. 519; Buzzell O Snell, 25 N. 

111. 539; Stephens ». Sweeney, 7 HI. H. 474; Taylor v. Jones, 42 N. H. 25; 

375; Pixley V. Boynton, 79 111. 351; Sanborn r/. Enierson, 12 N. H. 57. 

Thomlinson v. Earnshaw. 14 111. App. New Jersey, — Herbert v. Harden- 

593; Hunter v. Sherman, 3 III. 539; bergh, 10 N. J. L. 222. 

Bristow V. Cailett. 92 111. 17. New York. — Collins v. Albany, etc., 

Indiana. — ]6hnsoti v. Hawkins, 2 R. Co., 12 Barb. (N. Y.) 492; Putnam 

Blackf. (Ind.) 459; Dobenspeck v. Ar- v. Shelop, 12 Johns. (N. Y.)435; Corn- 

mel, II Ind. 31; Lambert v. Black- ing v. Corning, 6 N. Y. 97; Weed v, 

man, i Blackf. (Ind.) 59; Harris v. Lee, 50 Barb. (N. Y.) 354; Gansevoort 

Osenback, 13 Ind. 445; Phillips v. Freezing, etc., Co. r. Wessels Co., (N. 

NichoUs. 3 Blackf. (Ind.) 133; Alsop Y. Super, Ct. Gen. T.) 9 Misc. (N. Y.) 

V. Wiley, 17 Ind. 452. 703; Dox v. Dcy, 3 Wend. (N. Y.) 356; 

Iowa, — David t: Conard, I Greene Curtiss v, Lawrence, 17 Johns. (N. Y.) 

(Iowa) 336; Morrill v. Miller, 3 Greene no; Barber v. Rose, 5 Hill (N. Y.) 76; 

(Iowa) 104; Bridge v. Livingston, 11 Fish r. Dodge, 4 Den. (N. Y,) 311. 

Iowa 57; Cox r. Burlington, etc., R. North Carolina. — VTilliamson v. 

Co.. 77 Iowa 478; Roberts v. Smith, i Canaday, 3 Ired. L. (N, Car.) 349; 

Morr. (Iowa) 417; Garber v. Morrison, Harper v, Davis, 9 Ired. L. (N. Car.) 

5 Iowa 476. 44. 

Kansas. — Frankhouser v. Cannon, Pennsylvania, — Fury v. Stone, a 

50 Kan. 621. Dall. (Pa.) 184, i Yeates (Pa.) 186; 

Kenttuky. — Newport News, etc., R. Lantz v, Frey, 19 Pa. St. 36iS; Spack- 

Co. V. Thomas, 15 Ky. L. Rep. 876; man v. Byers, 6 S. & R. (Pa.) 385. 

Bealle V. Schoal, i A. K. Marsh. (Ky.) Rhode Island. — Francis v, Ba^er, 11 

475. R. I. 103. 

Louisiana. — Jones v. Pereira, 13 La. South Carolina. — Croxton v. Addi- 

Ann. 102; Benagam v. Plassan, 15 son, Harp. L. (S. Car.) 72; Ashmore v. 

La. Ann. 703; Leverich v. Adams, 15 Charles, 14 Rich. L. (S. Car.) 63. 

La. Ann. 310. Tennessee. — Campbell v, Hancock, 7 

Affliji/. — Slarbird z\ Eaton, 42 Me. Humph. (Tenn.) 75; Fowlkes v, Web- 

569. ber, 8 Humph. (Tenn.) 530; McKinley 

Maryland. — Harris v. Jaffray, 3 v. Beasley, 5 Sneed (Tenn.) 170; Good- 

Har. i J.(Md.) 543; Lewis v. Cooke, i man v. Floyd, 2 Humph. (Tenn.) 59; 

Har.& M.(Md.) 159; Attrill ». Patter- Crabb v. Nashville Bank, 6 Yerg. 

son, 58 Md. 226. (Tenn.) 332. 

Massachusetts. — King v. Howard, i Texas. — Gregory v. Coleman, 3 Tex. 

Cash. (Mass.) 137; Hem men way v. Civ. App. 166; Moore v. Republic, i 

Hickcs, 4 Pick. (Mass.) 497. Tex. 563; Gay v. Raines, 21 lex. 460; 

» Michigan. — McCorroick Harvesting King v, Bremond, 25 Tex. 637; Mc- 

• Mach. Co. V. McKee, 51 Mich. 426; Donald v. Grey, 29 Tex. 80; Thomae 

* HubbcU f. Palmer, 76 Mich. 441. v. Zushlag, 25 Tex. Supp. 225; York 

Minnesota. — Campbell v. Loeb. 72 v. Gregg, 9 Tex. 85. 

Mion. 76; Elfelt v. Smith, i Minn. 125 Virginia. — Hook v. Turnbull. 6 

Mississippi. — Hurd v. Germany, 7 Call (Va.) 85; Tennant v. Gray, 5 

"0*. (Miss.) 675; Young r. Englehard Munf. (Va.) 494; Lewis v. Arnold, 13 

' How. (Miss.) 19. Gratt, (Va.) 454. 

Missouri. — Zerbe v. Missouri, etc., Wisconsin. — Smith v, Phelps, 7 Wis. 

** Co., 70 Mo. App. 644; Peck v. 21 1; Lester z/. French, 6 Wis. 580. 

141 Volume XVIII. 



1 



Errm CnntUe REMITTITUR. by BemittlUr. 

bond, the appellate court may permit the plaintiff to enter a 
remittitur of the excess.* 

4. Judgment in Excess of Verdict. — An error in a judgment, in 
that it exceeds the amount of the verdict on which it is entered, 
may be cured by a remittitur of the excess.* 

6. Improper or Excessive Becoyery of Interest. — A judgment 
erroneous because of an improper or excessive allowance of 
interest or of usury may be cured by a remittitur.' 

Wyoming, — Iirenson v, Caldwell, 3 District of Columbia^ 21 D. C. 508; 

Wyo. 465. Connor v, Meany, 8 App. Cas. (D. C.) 

United States, — Kentucky Bank v, i, 24 Wash. L. Rep. 235. 

Ashley, 2 Pet. (U. S.) 327. Georgia, — King v. Black Diamond 

In Arkaniafl it would seem that error Coal Co., 99 Ga. 103. 

in finding damages beyond the amount Illinois, — Tomlinson v, Earnshaw, 

claimed in the complaint is not cured 112 111. 311, affirming 14 111. App. 593; 

by an offer to remit the excess. Tyner Cooper v, Johnson, 27 111. App. 504; 

V. Hays, 37 Ark. 599. Hart v, Morgan, 49 111. App. 516; Wil- 

Jadgment in Ezoess of BiU of Partion- letts v, Wheeler, 33 111. App. 629; 

Ian. — A judgment for a greater Firemen's Fund Ins. Co. v. Western 

amount than that contained in the bill Refrigerating Co., 162 111. 322; Convey 

of particulars may be cured by a re- v. Sheldon, i 111. App. 555. 

mittitur of the excess. Roberts v, Indiana, — Browning v. Merritt, 61 

Smith, T Morr. (Iowa) 417. Ind. 425; Simpson v. Shafer, 20 Ind. 

Soire Faoiaa Against Bail. — Where 306. 

the trial court gives judgment for the Iowa, — Thrift v, Redman, 13 Iowa 

plaintiff in a scire facias against bail 25; Thompson v, Purnell, 10 Iowa 205; 

for too large an amount, the appellate Brentner v, Chicago, etc., R. Co., 68 

court will reverse the judgment and Iowa 530. 

enter it for the proper sum. Bowyer Kansas, — Educational Assoc, r. 

r. Hewitt, 2 Gratt. (Va.) 193. Hitchcock, 4 Kan. 36. 

1. Line v. State, 131 Ind. 468. Michigan, — Bresnahan v. Nugent, 

9. Morrill v. Miller, 3 Greene (Iowa) 97 Mich. 359. 

104; Miller v. Hardin, 64 Mo. 545; Minnesota, — Sanborn v, Webster, 2 

Hoffman v, Bowen, 17 Tex. 506. Minn. 323. 

An EtroneoQS Entry of judgment may Missouri, — Kimes v, St. Louis, etc., 

be cured by the plaintiff's remitting the R. Co., 85 Mo. 611; Whetstone v, 

excess. Smith v, Paul, 8 Port. (Ala.) Shaw, 70 Mo. 575; Slattery v. Bates, 8 

503; Lear V. McMillen, 17 Ohio St. 464. Mo. App. 595; Flannery v, St. Louis, 

Judgment in Exoess of Amount Bne. — etc., R. Co., 44 Mo. App. 396; State v. 

Where judgment is taken for more Hope, 121 Mo. 34. 

than is at the time legally due, the New York, — Lawrence v. Church, 

error may be corrected by remitting 129 N. Y. 635, 41 N. Y. St. Rep. 513; 

the excess. Doty 7'. Rigour, 9 Ohio McLaughlin v, Washington County 

St. 519; Mock V, Walker, 42 Ala. 668. Mut. Ins. Co., 23 Wend. (N. V.) 525; 

Jndgment on Cause of Action Not Set Klipstein v. New York El. R. Co., 

Up. — Error in permitting a party to (N, Y. Super. Ct. Gen. T.) 29 N. Y. 

recover on a cause of action not con- Supp. 1145. 

tained in his declaration or complaint North Carolina, — Porter v, Grims- 

may be cured by a remittitur of the ley, 98 N. Car. 550. 

amount so recovered. Fisk Pavement, Ohio. — Averill Coal, etc., Co. v, 

etc., Co. V. Evans, 37 N. Y. Super. Ct. Verner, 22 Ohio St. 372. 

482; Ward v. Haws, 5 Minn. 440. Oregon, — Duzan v, Meserve, 24 Ore- 

%, Arkansas, — McFarland v. State gon 523. 

Bank. 4 Ark. 44; Hay v. State Bank, 5 Pennsylvania, — Emerson v, Schoon- 

Ark. 250. maker, 135 Pa. St. 437; Graham f. 

California, — Crosby v, McDermitt, Keys, 29 Pa. St. 189. 

7 Cal. 146; Behlow v, Shorb, 91 Cal. Tennessee, — Louisville, etc., R. Co. 

I4i« V, Wallace, 91 Tenn. 35. 

District of Columbia, — Costello v, Texas, — Chapman v, Bolton, (Tex, 

142 Volume XVIII. 



mm CiuraUe ' RFMITTITUR. by Bemittitiir. 

fatuTo Interest. — It has been held that where the verdict mani- 
iestly includes both principal and interest and does not specify 
separately the amount of each, a new trial will be required unless 
the prevailing party will renounce all future interest upon the 
judgment.^ 
B. Improper or Excessive Recovery of Costs or Attorney's Fees. — 

An erroneous or excessive allowance of costs or attorney's fees 

may be cured by a remittitur.* 

7. Improper Recovery of Exemplary Damages. — A verdict or 
judgment erroneous because of the allowance of exemplary dam- 
ages may sometimes be cured by a remittitur of such damages.' 

8. Szoessive Recovery of Land. — It has also been held that an 
excessive recovery of land may be cured by a remittitur of the 
excess where the amount of the excess is clearly ascertainable.* 

Civ. App. 1894) 25 S. W. Rep. looi; Rep. 322; San Antonio, etc., R. Co. v. 
Galveston, etc., R. Co. v. Carter, (Tex. Morgan, (Tex. Civ. App. 1898) 45 S. 
App. 1892) iS S. W. Rep. 196; Alamo W. Rep. 169; Texas- Mexican R. Co. r. 
F. Ins. Co. V, Schmitt, 10 Tex. Civ. Blucher, (Tex. Civ. App. 1897) 42 S. 
App. 550; Halbert v. Paddleford. W. Rep. 1022; Stone v. Chicago, etc., 
(Tex, Civ. App. 1896) 33 S. W. Rep. R. Co., 88 Wis. 98. But see St. Louis, 
1092, modifying on rehearing (Tex. etc., R. Co. v. Hall, 53 Ark. 7. 
Civ. App. 1896) 33 S. W. Rep. 592; 4. Sanders v. Simmons, (Miss. 1893) 
Mealy v. Corkill, 75 Tex. 599: San 12 So. Rep. 850; Fine z'. St. Louis Pub- 
Antonio, etc., R. Co. V. Kniffen, 4 lie Schools, 39 Mo. 59; McQuiddy v. 
Tex. Civ. App. 484: Kinkier v. Junica, Ware, 67 Mo. 74; Keen v. Schnedler, 
84 Tex. 116; Ft. Worth, etc, R. Co. v. 92 Mo. 516; Gibson v. Chouteau. 50 
Osborne, (Tex. Civ. App. 1894) 26 S. Mo. 85; Fowler v. Nixon, 7 Heisk. 
W. Rep. 274. (Tenn.)7i9. 

Vermont. — Miltimore v. Bottom, 66 Writ of Entry. — Where on a writ of 

Vt. 168. entry there is a disclaimer as to part 

Wisconsin, — German Mut. Farmer and the general issue as to the residue 

F. Ins. Co. V, Decker, 74 Wis. 556; and the jury return a verdict for the 

Nadd V. Wells, 11 Wis. 415. whole in favor of the demandant, he 

United States. — Was'iington, etc., may have judgment for the parcel in- 

R. Co.'r. Harmon, 147 U. S. 571; Gulf, tended to be found if the materials for 

etc., R. Co. V. Johnson, 54 Fed. Rep. a sufficient description exist upon en- 

474- tering a remittitur as to the residue. 

In Xaine it has been held in a case Odlin r. Gove, 41 N. H. 465. 

brought up by exceptions from a lower Bents and Proflts. ^ And where, in 

court, the higher court cannot author- ejectment, the judgment includes dam- 

iM a remittitur of excess of interest ages for rents and profits, where there 

allowed by the jury under the instruc- is no evidence as to them, the error 

lions of the court below. Greenleaf v. may be corrected by a remittitur in the 

Hill, 30 Me. 165. appellate court. Franklin v. Haynes, 

1. Hubbard v. McRae, 95 Ga. 705. 119 Mo. 566. 

See also Buice v. McCrary, 94 Ga. 418. Betterments. — Where betterments are 

8. Richmond, etc. R. Co. v. Benson, erroneously awarded, the error may be 

J6 Ga. 203; Dearlove v. Edwards, 166 cured by remitting them. Wendell v, 

Jjj. 619; School Trustees v. Hihler, 85 Moulton, 26 N. H. 41. 

111. 409, Dowty V. Holtz, 85 111. 525; Adding Parties to Bepresent Excess. — 

^"sp. Sandwich Mfg. Co., 21 III. In McQuiddy t^. Ware, 67 Mo. 74, the 

ApP- 56; Glos V. McKeown, 141 III. plaintiffs, as heirs of one who died 

|o8; Stone v. Billings, 167 III. 170; seized of certain land, recovered in an 

Shannon v. Pickell, (Supm. Ct. Gen. action of ejectment a larger interest in 

T.MoN. Y. St. Rep. 559. such land than they were entitled to. 

•. Bitby V. Dunlap, 56 N. H. 456; Upon appeal they asked leave of the 

Freiberg ». ElHoil, (Tex. 1888) 8 S. W. appellate court to add, as parties plain- 

143 Volume XVIII. 



Brron Hot OunhU REMITTITUR, \rg Semittitiir. 

VI Ebsoes Hot Cttbable bt RsMiTTiTxrE — 1. Verdict Result of 
Passion or Prejudice. — Where the damages are so excessive as to 
be accounted for only on the ground of passion or prejudice 
on the part of the jury, a remittitur will not cure the error, as 
such passion or prejudice will be deemed to have influenced the 
finding of the jury on the issues of fact.' But the fact that a 
verdict is large, and the trial court requires a remittitur of a part 
thereof, does not, of itself, show that the verdict was given under 
the influence of passion or prejudice.* 

tiflf, the names of other heirs represent- Nebraska, — Wainwright r. Satter- 
ing the excess of interest recovered, field, 52 Neb. 403; Regier r. Shreck, 47 
It was held that this amendment could Neb. 667; Fremont, etc., R. Co. v. 
nut be aUowed ; that the remedy in French, 48 Neb. 638. 
such case, where there was no other New York, — Cassin v, Delany, 38 
error in the record, was for the plain- N. Y. 178. 

tififs tu enter a remittitur. Ohio, — Douglas v. Day, 28 Ohio St. 

Statute Permittiiig Hew Trial as of 175; Pendleton St. R. Co. r. Rahmann, 
Eight. — In Illinois it has been held that ?2 Ohio St. 446. 

under the statute permitting a defend- South Dakota, — Murray v, Leonard, 
ant in ejectment to have a second trial, (S. Dak. 1898) 75 N. W. Rep. 272. 
a remittitur cannot be entered for an Tennessee, — • Massadillov. NashWUe, 
excessive recovery in ejectment. Lowe etc., R. Co., 89 Tenn. 661. 
V, Foulke, 103 111. 58; Stream v, Lloyd, Texas, — Gulf, etc.. R. Co. v. Coon, 
128 III. 493. See also East St. Louis 69 Tex. 730; Nunnallyr. Taliaferro, Sa 
V. Hackett, 85 111. 382. Tex. 286; Thomas ». Womack, 13 Tex. 

1. Stafford v, Pawtucket Hair-Cloth 580. 
Co., 2 Cliff. (LJ. S.) 82, wherein it was Wisconsin, — Schultz v, Chicago, 
said: ** Where the circumstances etc., R. Co.. 48 Wis. 375. 
clearly indicate that the jury were in- Cti&otient Yerdiet. — Where a quotient 
fluenced by prejudice or by a reckless verdict is rendered, the trial court is 
disregard of the instructions of the not authorized to accept a remittitur of 
court, that remedy cannot be allowed, all but the lowest amount which any 
Where such motives or influences ap- juror was disposed to give, and render 
pear to have operated, the verdict must judgment for that amount. Dariand 
be rejected, because the effect is to v. Wade, 48 Iowa 547. 
cast suspicion upon the conduct of the Error AfEsoting Eiglit of EeooYOiy, — 
jury and their entire finding." Errors of law occurring on the trial 

See also the following cases: going to the right of recovery cannot 

Illinois, — Chicago, etc., R. Co. v, be cuted by entering a remittitur in 
Cummings, 20III. App. 333; West Chi- the appellate court. Ramming v, 
cago St. R. Co. z/. Johnson, 6q 111. App. Caldwell, 43 111. App. 175. 
151; Chicago, etc., R. Co. v. Binkopski, Judgment Eetomo Habendo in EeploT- 
72 111. App. 22; West Chicago St. R. in. — In replevin, where it appears by 
Co. V. Krueger. 68 111. App. 450; Loe- the officer's return that he had restored 
wenthal v, Streng. 90 III. 74. the property replevied, it is error to 

Kansas, — Steinbuchel v, Wright. 43 r&nder a judgment retor no habendo, and 
Kan. 307; Bell v, Morse, 48 Kan. 601; a remittitur of the damages will not 
Atchison, etc., R. Co. v, Dwelle, 44 cure the error as it is no release of the 
Kan. 394; Atchison, etc.. R. Co. v, judgment for a return. Harrod p. 
Plaskett, 47 Kan. 107; Union Pac. R. Hill, 2 Dana (Ky.) 165. 
Co. V, Hand, 7 Kan. 380; Atchison, Judgment by IMbult. — Upon default 
etc.. R. Co. v. Cone, 37 Kan. 567; after publication in attachment pro- 
Haldeman v, Johnson, (Kan. App. ceedings, a judgment for too large an 
1898) 54 Pac. Rep. 507. amount cannot be cured by a remit- 

Minnesota. — Kopp v. Northern Pac. titur, for the reason that the record 
R. Co., 41 Minn. 310 cannot show that the merits as to the 

Missouri. — Koelti v. Bleckman, 46 residue are with the party in whose be- 
Mo. 320; Doty V, Steinberg, 25 Mo. half the same was entered. Cohen r. 
App. 328; Chitty V. St. Louis, etc., R. Smith. 33 111. App. 344. 
Co., (Mo. 1899)49 S. W. Rep. 868. 2. Conrad Seipp Brewing Co. », 

14A Volume XVIIL 



^^ in WUok Bomittitnr REMITTITUR. Should B6 Xnt«nd» 

8. Failure of Pleading to Show JnrudictioiL — A defect in a plead- 
ing in a federal court in that it failed to show the diverse citizen- 
ship necessary to give the court jurisdiction cannot be cured by 
making such averment of diverse citizenship in a remittitur of a 
portion of the judgment.* 

3. Judgment of Justice in Ezceas of Jnrisdiction. — A judgment 
ol a justice of the peace in excess of his jurisdiction cannot, it 
would seem, be cured on appeal by a remittitur of the excess.* 

vn. CouBT nr Which KsMiTTiTxrE Should Be Ehtebbd — Trial 

Court. — The practice varies as to the court in which a remittitur 
should be entered after the cause has been transferred to an 
appellate court. Some jurisdictions require the entry to be made 
in the trial court.* 

Doody, 25 III. A pp. 305; Stumer r. Carathers, 9 Yerg. (Tcnn.) 30; Crow 

Pitchman, 22 111. App. 399; Baxter v, v, Cunningham, 5 Coldw. (Tenn.) 255. 

Cedar Rapids, 103 Iowa 599; Grant See generally articles Amount in Con- 

V. Wolf, 34 Minn. 32. See also Omaha tkoversy, vol. i, p. 702; Justices of 

Ins. Co. V, Thoncpson, 50 Neb. 580. the Peace, vol. 12, p. 755. 

Xnorin AsMwing Aetnal Damagei. — Bamlttitarof Demand in EzoaM of Jnrii- 

Ao error by the jury in assessing diction. — In Plunket v, Evans, 2 S. 

actual damages, where the damages Dak. 434, it was held that a plaintiff 

are computed on the value of goods claiming a sum in excess of the juris- 

damaged or destroyed, is not evidence diction of the justice cannot at the trial 

o( passion or prejudice on the part before the justice remit the excess and 

of the jury. Erie, etc., Dispatch v, take judgment for a sum within the 

Stanley, 22 111. App. 459. justice's jurisdiction. 

1. Denny r. Pironi, 141 U. S. 121, Jndgmont on Appeal in Ezoeee of Jni- 

whereiu the court said: '* The remit- tioe*s Jnriediotion. — In Crow v. Cun- 

titar formed no properpartof the judg- ningham, 5 Coldw. (Tenn.) 255, which 

nent record, and the recital of citizen- was an appeal from a justice of the 

ship formed no proper part of the peace, the circuit court awarded judg- 

remiititur. Undoubtedly proceedings ment on a set-off in favor of the de- 

subsequent to the judgment are ad mis- fendant to a larger amount than the 

sible to show what action has been justice had jurisdiction over. It was 

taken upon such judgment, as for in- held that the supreme court on appeal 

stance that it has been vacated * * * could not allow a remittitur to be en- 

or that a part of it has been remitted, tered there for the excess. To the 

hat such proceedings cannot be intro- same effect is People v. Skinner, 13 III. 

dnced to validate a judgment void for 287. But see Lester v, French, 6 Wis. 

the want of jurisdiction. Not only is 580; Dunbar v, Bittle, 7 Wis. 143. 

the remittitur in this case open to this 8. Campbell v. Loeb, 72 Minn. 76; 

objection, but it appears upon its face Washington, etc., R. Co. v, Harmon, 

not to have been filed in good faith, but 147 U. S. 571; Phillips, etc., Constr. 

'Or the sole purpose of introducing Co. v. Seymour, 91 U. S. 646; Wernin- 

the averment of citizenship; in other ger v . Wilson, 2 W. Va. i; Spackman 

'[ords. this averroentisthe object, and v, Byers, 6 S. & R. (Pa.) 385; Pontius 

^^ remittitur the incident. Remit- v. Com., 4 W. & S. (Pa.) 52. See gen- 

Jjlttrs are used where the judgment has erally the statutes and rules of court of 

heen accidentally entered for a larger the seireral states. 

I ^'"ount than was due, or occasionally Bemittitnr in Appellate Court. — In 

50 forestall an appeal, but never to give Hollinger v. Smith, 4 Ala. 367, it was 

jnrisdiciion where it is not otherwise said: " The defendant in error has 

***own." offered to remit his damages for the 

•• Hanna v. Morrow, 43 Ark. 107; purpose of avoiding another trial, but 

rntchard v. Bartholomew, 45 Ind. 219; we think this cannot be done, as our 

Suirj,, Bishop, 121 Ind. 273; Batchelor jurisdiction over the case ceases with 

«[; Bess, 22 Mo. 402; 1 James v. Mc- its reversal, and we are not invested 

^^mroch, 92 N. Car. 362; Dixon v. with the discretionary power to allow 

18 Encyc. pi. & Pr. — 10 145 Volume XVIII. 



jMKfmitUm of XaoM. REMITTITUR. Qm Trmlttng Party. 



Afl^ilUU Oovt. — In other jurisdictions the remittitur may be 
fil ed in the appellate court.^ 

VIXL Imposition op Txuit — 1* On PrevEiliag Party. — Where 
a remittitur is not entered until the cause is carried to an appel- 
late court, the party remitting is usually taxed with the costs of 
the appeal or writ of error.* 

of such amendment. When the judg- 1. ArJkansas.'^^Tuhon v. Hunt, 3 

ment is reversed there is nothing for Ark. 280; Robertson v, Allen, 36 Ark. 

such a release to operate upon because 553. 

the judgment is declared null. The California, — Eames v. Haver, iii 

release cannot be entered before the Cal. 401. 

reversal for the reason that no such Iowa, — Waggoner v. Turner, 69 

pQwer is vested in this court, and by Iowa 127. 

such a course the parties in a great • Missouri, — Smith v, Wabash, etc., 

number of cases would avoid the con- R. Co., 92 Mo. 359; Johnston v, Mor- 

sequences of erroneous proceedings to row, 60 Mo. 339. 

the prejudice of those against whom Michigan, — McCormick Harvesting 

they were committed." Mach. Co. v, McKee, 51 Mich. 426. 

In nUaait, by the early practice, the Nebraska, — Carter v. Munson, 27 

remittitur was entered in the trial Neb. 172. 

court. Dowling V. Stewart, 4 III. 193: Ohio, — Collins v, John, Wright 

Pickering f'. Pulsifer, 9 III. 79: Chenot (Ohio) 62S. 

V. Lefevre, 8 111. 643; Wood v. King- Tennessee, — Fowlkes v, Webber, 8 

ston Coal Co., 48 III. 356; Aldrich v. Humph. (Tenn.) 530; Campbell v. 

Aldrich, 37 111. 32; Beese v. Becker, Hancock, 7 Humph. (Tenn.) 75; Crabb 

51 111. 82; Fournier v. Faggott, '4 111. v. Nashville Bank, 6 Yerg. (Tenn.) 332; 

347- McKinley v, Beasley, 5 Sneed (Tenn.) 

And it was only in extraordinary 170; Fowler v. Nixon, 7 Heisk. (Tenn.) 

cases that it was permitted in the court 719. 

of appeal. Boyle v. Carter, 24 111. 49; Texas, — Baird v. Trice, 51 Tex. 555. 

Teller r. Hoskins, 32 111. 165. United States, — Loewerz^. Harris, 57 

The statute (Cothran*s Stat. 1885. p. Fed. Rep. 368; Kentucky Bank v. 

1112), now permits the entry of a Ashley. 2 Pet. (U. S.) 327. 

remittitur in the court of appeal. lamdlloient Remittitur Below. — Where, 

School Trustees v, Hihler, 85 111. 409; on a motion for a new trial, the court 

Snell V, Warner, 91 111. 472; Hart v, rules that certain instructions were 

Morgan, 49 111. App. 516; Mosely v, erroneous as to one cause of action and 

Schoonhoven, 12 III. App. 113; Thom- the plaintiff attempts to avoid a new 

linson v, Earnshaw, 14 III. App. 593; trial by entering a remittitur, but does 

Winslow V, People, 117 III. 152; Glos not remit enough, the appellate court 

V, McKeown, 141 111. 288; North will permit him to remit the balance 

Chicago St. R. Co. v, Wrixon, 150 III. of the amount improperly recovered. 

532; Daube v. Ncssler, 50 111. App. 166. Warder v. Henry, 117 Mo. 530. 

See also Schneider v. Seely, 40 III. 2. California, — Doll v. Feller, 16 

257; Cheney z'. City Nat. Bank, 77 III. Cal. 432; Eames v. Haver, iii Cal. 

562; Rowan v. People, 18 111. 159; North 401. 

Chicago St. R. Co. v. Cotton, 41 III. Indiana, — Teagarden v. Hetfield, 11 

App. 311. Ind. 522; Pate v, Roberts, 55 Ind. 277: 

In Wisoonsin the earlier practice per- H. G. Olds Wagon Works v. Coombs, 

milted the entry of a remittitur in the 124 Ind. 62: Lambert v. Blackman, i 

appellate court. Kavanaugh v, Janes- Blackf 1 (Ind.) 59. 

ville, 24 Wis. 618; Bigelow v, Doolittle. Iowa, — Keyser v, Kansas CiMr, etc., 

36 Wis. IIS; McHugh v. Chicago, etc., R. Co., 56 Iowa 440; Gere v. Council 

R. Co., 41 Wis. 75. Bluffs Ins. Co., 67 Iowa 272; Payne v. 

Later practice requires the entry to Billingham, 10 Iowa 360. 

be made in the trial court. Evans v, Missouri. — Peck v. Childers, 73 Mo. 

Foster, 80 Wis. 509; Page v, Sumpter, 484; Higgs v. Hunt, 75 Mo. 106; Burke- 

53 Wis. 652; Wylie v, Karner, 54 Wis. holder r. Rudrow, 19 Mo. App, 60; 

591; West V, Milwaukee, etc., R. Co., Miller v. Hardin, 64 Mo. 545; Clark v. 

56 Wis. 318. Bullock, 65 Mo. 535. 

146 Volume XVIIL 



iBpotf^iflBB Of Tonw. REMITTITUR. Ob Losing Party. 



^^mXM ^d Intormadiaie Appellate Court. — It has been held that costs of 
an intermediate appellate court maybe taxed against the pre- 
vailing" party where the remittitur is not entered until the case is 
cattied to a higher court.* 

1 Oil. Losiiig Party. — As a rule no terms should be imposed on 
the losing party on the allowance of a remittitur.* 

XiBtaJka of Clerk. — Where, however, the only error assigned on 

appeal is that the judgment is in excess of the verdict, and it 
appears that the error was a mistake of the clerk, the costs of the 
appeal or writ of error will be taxed against the appellant or plain- 
tiff in error.' 

NortA Carolina, — Williamson r. Bristow v. Catlett, 92 111. 17; Welsh v, 

Canaday, 3 I red. L. (N. Car.) 349; Johnson, 76 111. 295; Dowty v. Holtz, 

Harper ». Davis, 9 Ired. L. (N. Car.) 85 III. 525; PixJcy v. Boyoton, 79 111. 

44; Con aelly z'. McNeil, 2 Jones L. (N. 351; Snell v. Warner, 91 111. 472; 

Car.) 5 1. Cooper v, Johnson, 27 111. App. 504; 

Oh\€>. — Doty V. Rigour, 9 Ohio St Kankakee, etc., R. Co. v, Horan, 30 

5ig. 111. App. 552; School Trustees v. Hih- 

Ttx€Ms. — Bracken v, Neill. 15 Tex. ler, 85 111. 409. 

log; Gulf, etc., R. Co. v. Key, (Tex. 1. Firemen's Fund Ins. Co. v. West- 

App. x8qi) 16 S. W. Rep. 543; Pearcc crn Refrigerating Co., 162 111. 322. 

». Tootle, 75 Tex. 148; McNairy v. 2. Schultz i^. Chicago, etc., R. Co., 48 

Castle berry, 6 Tex. 286; Westall v, "Wis. 375. In this case the trial court 

Marsha.ll, 16 Tex. 182; Chrisman declined to sign judgment for the sum 

V. Davenport, 21 Tex, 483; Arnold v. assessed by the jury until the plainiiS 

Williams. 21 Tex. 413; Howe c^.Merrell, stipulated to discharge the judgment 

36 Tex. 319; McDonald v. Grey, 29 if the defendant should, within sixty 

Tex. 80 ; Reed V. Herring, 37 Tex. 160; days after the judgment should be 

Cornelius v, Thompson, 27 Tex. 31. signed, pay the plaintiff a certain sum 

Wisc^9tsin, — Wright v. Roberts, 22 together with the costs. The court 

Wis. x6r ; Kavanaugh v^. Janesville, 24 said: "We are aware of no law or 

Wis. Si 8. rule of practice which authorizes a 

Unit^ti States, — Fury v. Stone, 2 court to impose the terms here imposed 

Dall. (fa.) 184; Washington, etc., R. as a condition precedent to signing 

Co. V. Harmon, 147 U. S. 571. judgment. The court may grant or 

Is Ar^uisas the rule is that where a refuse a new trial, or, in a proper case, 

remittitur will cure the only error com- may grant a new trial nisi ; but should 

plained of, it will be allowed to be do one thing or the other. It should 

entered upon the terms of paying not, as was done in this case, require 

costs, a,nd of an abandonment of rec- the prevailing party to remit a portion 

ord of all right to proceed on the recog- of the damage awarded, and then de- 

nizance. Fowler v, Johnson, 11 -Ark. prive the other party of the benefit of 

280; Fulton V, Hunt, 3 Ark. 280; Rec- the reduction unless he submits to 

lor V, Gaines, 19 Ark. 70; Hunter v. onerous terms." See also Gardner t'. 

Gaineft, 19 Ark. 92; Hamlett v. Tall- Tatum. 81 Cal. 370. 

man, 30 Ark. 505; Dodds v, Roane, 36 Costs of Motioii. -^ Where the prevail- 

Ark. 51 T; Robertson v, Allen, 36 Ark. ing party makes a motion in the trial 

553*1 Hirsch v. Patterson, 23 Ark. 112; court for a modification of the judg- 

Texas, etc., R. Co. v, Kirby, 44 Ark. ment by a remittitur of a part thereof, 

103; Hay V. State Bank, 5 Ark. 251; the court should not impose on the 

Exp. Hardy, 26 Ark. 94. losing party who had theretofore ap- 

la niinois where the only error in the pealed, a condition that he pay fiie 

record is obviated by a remittitur, the costs of the motion should he fail to 

judgment will be affirmed and costs in dismiss his appeal. German Mut. 

the court above to the date of the entry Farmer F. Ins. Co. v. Decker, 74 Wis. 

of the remittitur, and the costs of enter- 556. 

ing the same will be taxed against the S. Hoffman v. Bowen, 17 Tex. 506, 

appellee. Lowman v. Aubery, 72 III. wherein it was said: " On reference 

619; Nixon V. Halley, 78 III. 611; to the verdict and judgment it is found 

147 Volume XVIII. 



Jndgmtnt on Entry of. REMITTITUR. ConelulYenMS of Eomittitiir. 

X«fkiial of Qffnr of Semittitiir. — And where, before costs are made on 
appeal, the successful party offers to remit all the judgment above 
a certain amount, and the offer is refused, and on final hearing 
judgment is rendered for the amount as reduced by the remittitur, 
the costs of the appeal should be taxed to the losing party.* 

DC. JxTDGKEirT ON Entbt OF Kemittitub — 1. In Trial Court — 
On the filing of a remittitur to cure an excessive recovery, judg- 
ment should be entered for the amount of the recovery as reduced 
by the remittitur.* 

2. In Appellate Court — The judgment rendered in an appellate 
court on the remission in such court of excessive damages depends 
on the practice in such court as to the rendition of judgments on 
appeal.* 

X. COHCLUSIVEKEBB OF Semittitttb. — A party consenting to a 

that there is a mistake in the calcula- verdict in favor of the plaintiff for 

lion of interest by the clerk. *  * $4,750.10, ** subject to the aforesaid re- 

The appellee offers to remit this excess mittitur.'* The supreme court said: 

and asks an affirmation of the judg- '* Judgment was improperly rendered 

ment. There is nothing to be considered for the sum found by the j ury and not for 

of, but the costs, and under the circum- the sum which remained after deduct- 

stances of this case we are of the opin- ing the amount remitted. The order 

ion that the appellant is not entitled to should have recited the finding of the 

costs. It is clear that it is the mistake jury, the amount remitted and then 

of the clerk that has furnished the ap- proceeded to render judgment for the 

peliant with his sole ground of error; remainder.*' See also Walker v. Ful- 

nor has he assigned any other; audit ler, 29 Ark. 448; Haynes v. Trenton, 

does not appear to us to have been 108 Mo. 123; Schilling v. Speck, 26 

more the duty of the plaintiff below to Mo. 489. 

have inspected the clerk's calculation Informality. — In McCausland v. 
of interest, than it was for the defend- Wonderly, 56 III. 410, the jury found a 
ant. Had it been noticed at the time, verdict for the plaintiff for $1,250. On 
it would have been corrected without a motion for a new trial the court held 
any additional costs; or had the ap- the verdict too large and the plaintiff 
peliant, before perfecting his appeal, expressed his readiness to enter a re- 
given notice to the appellee, it could mittitur of $600. Judgment was there- 
and no doubt would have been cor- upon rendered for $1,250. less $600 to 
reeled in the clerk's office by the appel* be remitted. It was held that such a 
lee. It appears, however, that it must judgment was informal and that a 
have been known to appellant, at the judgment for $650 should have been 
time the judgment was rendered, be- rendered. 

cause he claims an appeal from the 8. See article Judgments, vol. 11, p. 
judgment and assigns the mistake of 1055, and the following cases: Dean 
the clerk as grounds for reversing the v. Tucker, 58 Miss. 487; Meyer v, 
judgment. On the appellees entering Blakemore, 54 Miss. 584; Atwood v. 
the remittitur the judgment will be Gillespie, 4 Mo. 423; Tilford v. Ram- 
affirmed with costs." See also Bayliss sey, 43 Mo. 410; Johnston v. Morrow, 
V. Hennessey, 54 Iowa 11; Sanxey v. 60 Mo. 339; Miller v, Hardin, 64 Mo. 
Iowa City Glass Co., 68 Iowa 542. 545; Clark r. Bullock, 65 Mo. 535; 
1. Montelius v. Wood, 56 Iowa 254. Nicholds v. Crystal Plate Glass Co., 
S. Farr r. Johnson. 25 III. 522. In 126 Mo. 55; Bolger v. Metropolitan EI. 
this case the jury returned a verdict R. Co., (N. Y. Super. Ct. Gen. T.) 20 
for the plaintiff and assessed his dam- N. Y. Supp. 430; Carter v. Beckwith, 
ages at $4,750. 10, whereupon the plain- 128 N. Y. 312; Carter v, Roland, 53 
tiff entered a remittitur of $2,375.05. Tex. 540; Ft. Worth, etc., R. Co. v. 
The defendant entered his motion for White, (Tex. App. 1889) 14 S. W. Rep. 
a new trial, which the trial coutt over- 1068; Edmundson v. Yates. 25 Tex, 
ruled and rendered judgment on the 373; Baird t/. Trice, 51 Tex. 555. 

148 Volume XVIM, 



Gculiisiveiieii REMITTITUR. of Bemittitnr. 



• 



remittitur to avoid a new trial is, for all the purposes of the 
remittitur, bound by his election.^ He cannot, for instance, assign 
error on the action of the court requiring the remittitur.* Where, 
however, the prevailing party remits a portion of the judgment 
to prevent the granting of a new trial by the lower court, and a 
new trial is granted on appeal, the remittitur is not binding when 
theca.se is again tried in the lower court.' 

1. Iron R. Co. v, Mowery, 36 Ohio forpartof the damages recovered. The 
St. 418, wherein it was said: '* The plaintifif entered such remittitur, and a 
court gave him his choice to accept a motion for a new trial was overruled. 
revecsal of the judgment and a new The plaintifif appealed, assigning for 
trial upon the merits, or to remit the error the court's action in regard to the 
sum which, in the judgment of the remittitur. It was said: *' The consent 
court. IV as in excess of the amount to a remittitur was not compulsorily 
that oug^ht to have been recovered, obtained. The appellee might have 
The plaintiff elected to receive the declined to yield to what she thought 
amount of the judgment less the ex- the arbitrary course of the court, and, 
cess. Hy this election he was bound, if the court had persisted and had 
He obtained a judgment * *  actually set aside the verdict and 
which he would not have received had awarded a new trial, by taking appro- 
he not assented to the action of the priate steps the appellee might have 
court. That he asrented reluctantly had this court rectify the arbitrary ac- 
does Dot alter the case. By giving tion complained of, if indeed it had 
consent he became bound by the action been ascertained to be wrongful. The 
of ihei court.** See also George v. appellee prudently chose not to take the 
Law, X Cal. 363; James River, etc., hazard of that heroic course, and must 
Co. i'. Adams, 17 Gratt. (Va.) 435. be held to have voluntarily consented 

S^ttisi^ ABide Semittitur. — A parly to the remittitur.** See also Vinal v, 

who lias entered a remittitur in the Core, 18 W. Va. i; Koenigsberger v. 

court l>elow to avoid the granting of a Richmond Silver Min. Co., 158 U. S. 

new t vial cannot have it set aside on 41; McCausland v. Wonderly, 56 111. 

appeal. Floyd v. Efron, 66 Tex. 221. 410. 



„ Retraxit. — Where a 8. What Cheer v. Hines, 86 Iowa 

judgnnent in ejectment was entered in 231. 

llie sjipreme court in favor of the Semittitur as Seleaie. — Where one 

plaintiff^ upon condition that he enter who has recovered judgment in a jus- 

a remittitur for certain interfering sur- tice's court for a greater sum than the 

▼ey 8 specifically described, such a re- justice has jurisdiction, remits the 

roitlituir is not a retraxit, and is not a excess to save a reversal, tut the case 

bat to another suit. Gibson v. Chou- is nevertheless appealed and reversed, 

^eau. 7 hlo. App. i. it cannot be claimed in a subsequent 

J. Alabama, etc., R. Co. v. Davis. 69 trial that the plaintiff has released so 

Miss. 444. In this case the trial court much of the demand in suit as has 

made an order granting a new trial been remitted. School Dist. No. i v, 

unless the plaintiff enter a remittitur Cook, 47 Mich. 112. 

149 Volume XVIII. 



REMOVAL OF CAUSES. 

By Charles C. Moore. 

I Fbom Stats to Fedssal Ck^xniTs, 1 59. 

I. Constitutionality of Removal Acts ^ 159. 
3. Right of Removal Entirely Statutory^ 159. 

a. In General^ 159. 

b. Enumeration of Various Removal Acts^ 159. 

3. Rule of Construction of Removal ActSy 161. 

4. Statutory Requirements to Be Strictly Complied Witk^ t6l. 

5. Right of Removal Not Impaired by State Legislation^ i6t. 

6. Waiver of Right of Removal^ 163. 

7. From What Court a Suit May Be Removed^ 164. 

8. To What Court Removal Is Made, 166. 

9. Removable Suits or Controversies, 166. 

a. Suits, 166. 

b. Controversies, 169. 

c. Of a Civil Nature y 169. 

d. At Common Law or in Equity, 171. 

e. Mandamus Proceedings ^ 171. 

y. Quo Warranto Proceedings, 172. 
g. Habeas Corpus Proceedings, 172. 
h. Proceedings for Injunction or Prohibition, 172, 

/. Eminent Domain Proceedings^ I'j^, 

J. Proceediftgs Relating to Taxation, 174. 

h. Proceedings Relating to Wills and Admimstratum^ 174. 

/. Ancillary Proceedings, 176. 
i) In General, 176. 



!^ Garnishment Proceedings, 177. 



3) Proceedings Connected with J^udgments^ 177. 
(4) Ancillary Suits Against Receivers, 179. 
m. Only Suits Within Original jurisdiction of Federal 
Court, 179. 
(i) As to Subject' matter, 179. 
(2) Residence in Particular Federal District, 180. 
ta Suits and Prosecutions Against FedercU Revenue Officers, 181. 

a. Authority for Removal, 181. 

b. What Cases Are Remozfable, 182. 

c. Amount in Controversy, 1 83. 

d. From What Court Removable, 183. 

e. Time for Application for Removal, 183. 
/. How Removal Is Effected, 184. 

g. Trial in Federal Court, 184. 
II. Denial of Civil Rights, 184. 

a. Authority for Remo-oal, 184, 

150 Volame XVIIL 



^: 



REMOVAL OF CAUSES. 

f* What Cases Are Removable^ 185. 
e. How Removal Is Effected^ 186. 
!•• Parties Claiming Land Under Grants from Different SMet^ 

186. 

13. Suits for Acts Done During t?ie Rebellion, 187. 

14. Aetion by Alien Against Federal Civil Officer, 187. 

15. Citizenship as an Element of Federal yurisdiction^ 187. 

a. In General^ 187. 

A Residence in Territifry or District of ColumHay 187. 
A Citizenship of Corporations, 188. 
4/. Citizenship of Representative Parties, 189. 
i) Executors and Administrators, 189. 

[2) Trustees and Receivers, 189. 

(3) Guardian or Next Friend, 190. 

e. Partnership or ^oini- stock Company, 190. 
f Suit By or Against an Indian, 190. 
t6b Grounds for Removal under Act of j88j-i888y 19a 
tf. Diverse Citizenship of Parties, 190. 
(i) T'^ Statutory Provision, 190. 
Where a State Is a Party, 190. 
Time of Diverse Citizenship, 192. 
Where There Are Several Plaintiffs or Defend- 
ants, 193. 
^a) The Rule Stated, 193. 
/) Formal, Nominal, or Unnecessary Parties, 

195- 
aa. General Statement of Rule, 195. 

^^. Who Are and Who Are Not 

Formal or Unnecessary Parties^ 

197- 
(r) Sham Defendants, 202. 

(^ ) Defendants Fraudulently joined to Pre^ 

vent Removal, 202. 

(j) Rearrangement of Parties, 205. 

(5) Citizenship in State Where Suit Is Brought, 206. 

(6) Suits by Assignees, 206. 
t. Diverse Citizenship and Separable Controversy, 207. 

(i) History and Remedied Purpose of Separable 
Controversy Clause, 207. 

(2) Citizenship of Parties to Separable Controversy, 
209. 

(3) Separable Character of Controversy, 209. 
{a) General Tests, 209. 

aa. Suit Must Contain Separate Causes 

of Action, 209. 
4>. Must Afford Complete Relief , 211. 
cc. Separate Defenses Immaterial, 214. 

{aci) In General, 214. 

(bb) Actions en Contracts, 214. 

(jcc) Suits in Equity, 215. 

(jid) Actions in Tort, 216. 
IBl Volume XVIU. 



t 



REMOVAL OF CAUSES. 

(ee) CocUfendani Not Served^ 
217. 
(^ff) disclaimer or Default of 
CodefendarU^ 217. 
dd. Event of Suit Not Test, 218. 
ee. Misjoinder or Multifariousness, 218. 
ff. Main and Incidental Controversies, 

219. 
gg. Separate Suits Distinguished from 

Separate Controversies, 220. 
hh. Separable Controversy with One of 
Several Plaintiffs, 220. 
/V. Severance by Election of Plaintiff, 
220. 
(#) Tests Applied to Various Classes of Suits, 

221. 
aa. Eminent Domain and Local Assess^ 

ment Proceedings, 221. 
bb. Creditors* Bills and Suits Involving 

Priority of Liens, 221. 
cc. Bills for Partition and Bills to 

Quiet Title, 222. 
dd. Suits Against Partners or Involv- 

ing Partnership Affairs, 224. 
ee. Suits Relating to Wills and Ad- 
ministration, 224. 
ff. Foreclosure Suits, 225. 
gg. Taxpayers* and Stockholders* Suits, 

226. 
hh. Miscellaneous Suits in Equity, 227. 
{d) Separability, How Determined, 229. 

CM. By State of Record cU Time of 

Filing Petition, 229. 
bb. Plaintiff *s Pleading Considered as 

True, 229. 
(aa) General Rule, 229. 
Xpb) Exception to Rule, 230. 
(4) Removal Carries Entire Suit, 232. 
jr. Cases Involving FedercU Questions, 234. 

(i) What Constitutes FedercU Question, 234. 
{a) In General, 234. 
(Jf) Suit By or Against FedercU Corporation, 

(/) Sutt By or Agatnst Receiver Appointed by 

FedercU Court, 237. 
((/) Suit Against Receiver of NationcU Bank, 
238. 
(2) Who May Remove the Suit, 238. 

d. Suits by (he United States, 238. 

e. Suits Between Citizens and Aliens, 238. 
17. RemovcUfor Prejudice or Local Influence^ 239. 

162 Volume XVIII. 



[^ 



I 






REMOVAL OF CAUSES. 

A fV^t Causes Are Removable for Prejudice^ etc^ 239. 
(i) In Respect of Subject-matter ^ 239. 

(2) In Respect of Citizenship of Parties^ 240. 
(tf) Time of Citizenship, 240. 
(o) Citizenship of Plaintiffs^ 240. 
{/) Citizenship of Defendants^ 241. 

(3) Amount in Dispute, 244. 
t. Nature of Prejudice, etc. Required, 244- 

Ti) /« General, 244. 
(2^ Prejudice of J^udges^ 245. 

(S) Prejudice Avoidable by Change of Venue or 
Judge, 247. 
€* Between Whom Prejudice, etCy Must Exist, 248. 

d. Who May Remove Suit, 248. 

e. Time for Making Application, 250. 
/. Application to Be Made to Federal Court^ 254. 
g. Petition for Removal, 255. 
h. Bond for Removal, 256. 
I. Affidavit for Removal, 257. 

i^ Necessity and Sufficiency of Affidavit, 257. 
[iS Who May Make Affidavit, 260. 
(3) Time of Making Affidavit, 261. 
J. Notice of Application, 261. 

i. Hearing of Application — Counter-affidavits^ 262. 
/. Order Dismissing Application, 262. 
M. Order of Removal, Notification, and Effect Thereof, 262. 
i) Entry and Form of Order, 262. • 
rS Filing Copy of Order in State Court, 264. 

[3) 2?»/y tf «// Practice of State Court in Premises^ 
264. 

n. Filing Transcript in Federal Court, 265. 
o. Application to Remand and Hearing Thereon^ 265. 
/. Costs on Dismissal of Application, 267. 
q. Costs upon Remand to State Court, 267. 
r. Appellate Review of Order of Remand^ 267. 
l8. Amount in Dispute, 267. 

a. Amount Prescribed by Statute, 267. 

3. In What Cases jurisdictional, 268. 

^. Time When yurisdictioncU Amount Must Be in Dis* 

pute, 268. 
d. Matter in Dispute Not Susceptible of Pecuniary Esti* 

mation, 268. 
#• How Ascertained, 269. 

In General, 269. 

By Rearrangement of Parties, 270. 

Amount in Counterclaim or Set-off, 271. 

[4) Petition for Removed in Connection with Plead' 
ings, 271. 

f. Effect of Amendments, 272. 
t^ Who May Remove Suit, 273. 

a. For Diverse Citizenship, 273. 

158 Volume XVIIL 







REMOVAL OF CAUSES. 

lis Only a Defendant^ 273. 

(3) Wko Is Deemed a Defendant^ 273. 

(a\ In General^ 273. 

\b) Cross-bill or Counterclaim Against Plain* 
tiff, 274. 
(3) Nonresident Defendant, 274. 

{a) In General, 274. 

(Ji) Resideme of Corporation, 276. 
(4^ Substituted or Intervening Parties, 277. 
(5^ yoinder of All Defendants, 278. 

b. For Prejudice or Local Influence, 279. 

c. Suits By or Against Aliens, 279. 

d. On Ground of Federal Question, 280. 

e. For Diverse Citizenship and Separable Controversy, 

281. 
(i) Only Nonresident Citizen Drfendant Actually 

Interested, 281. 
(2) Removal by Intervener, 282. 
so. Time for Making Application, 284. 

a. Terms and General Purpose and Policy of Removal 

Acts, 284. 

b. The Phrase ** to Answer or Plead,'' 288. 

c. Premature Application, 289. 

d. When Time Begins to Run, 290. 

e. Filing Petition Without Presentation to Court, 290. 

f. Case Becoming Removcdfle After Expiration of Time^ 

290. 

g. Application Before Answer or Plea, 293. 
h. Application With Answer or Plea, 293. 
/, Application After Answer or Plea, 293. 

j\ Several Defendants Having Different Times to Plead, 

293. 
k. Successive Applications by Different Defendants, 294. 
/. Application by Intervening or Substituted Parties, 294. 
M. Extension of Time, 295. 

(i) By Order of Court or Stipulation of Parties, 295. 
(2) By Implication, 297. 

{a) By Filing Demurrer or Dilatory Plea, 

297. 
{Jf) By Amending Pleadings, 297. 
\c) By Act of God, or Illness or Ignorance 

of Counsel, 297. 
(^) By Failure of Plaintiff to Fix Default, 
297. 
tl. Record on Application for Removed, 297. 

a. Federal yurisdietion Must Appear mAffirmatively, 297- 

b. As to Citizens/lip or Alienage of Parties, 298. 

c. As to Federal Question, 299. 

d. Petition for Removal Paramount to Pleadings, 301. 

22. Removal by Stipulation of Parties, 302. 

23. Petition for Removal, 302. 

154 Volume XVIIL 




(4) 
(S) 



I 




t 



REMOVAL OF CAUSES. 

a. Necessity of AppUcatitm by Petition^ 30a. 
h. Title ^ Venue ^ and Address^ 303. 
£, Allegations of Petition^ 303. 

i) General Requisites as a Pleading^ 303. 
^2) As to Nature of Suit^ 304. 

As to Citizenship of Parties^ 304. 
(a) Necessity of Averment, 304. 
aa. In General, 304. 
M. Personal, Not Official, CitizensMp^ 

304- 
cc. Citizens/lip of Platntijf*s Assignor^ 

305- 
dd. Partnership or yoint-stock Cam- 

P<^ny, 305. 

Time of Alleged Citizenship, 305. 

Sufficiency of Averment, 306. 

cut. In GerurcU, 306. 

bb. Citizenship of Corporation^ 308. 

As to Alienage of Parties, 309. 

As to Nonresidence in State Where Suit Is 

Brought, 310. 

{a) In General, 310. 

r<^) Nonresidence of Corporation, 311. 

/) Nonresidence of Alien, 311. 

As to Amount in Dispute, 311. 

Showing Relative Interests of Other Parties^ 312. 

As to Separable Controversy, 313. 

As to Federal Question, 314. 

As to Filing of Bond, 315. 

11) As to Time of Filing Petition^ 315. 

d, yoinder of Several Grounds^ 315. 

e. Prayer for Removed, 315. 
/. Signature, 317. 

g. Verification, 318. 
84, Notice of Application, 319. 

25. Who May File Petition, 320. 

26. Filing and Presentation to State Courts 3201 

27. Amendment of Petition, 322. 

a. In State Court, 322. 

b. In FedercU Court, 324. 

28. Effect of Petition as Appearanee^ 328. 

29. Withdrawal of Petition, ^2^ 
JO. Bond for Removal, 328. 

a. Necessity of Bond, 328. 

b. Filing Bond, 328. 
i) Time for Filing, 328. 
'2) Filing or Presentation^ 329^ 

e. Form of Bond, 329. 

d. Condition of Bond, 330. 

e. Amount of Bond, 331. 
yi Execution of Bond, 33a. 

166 Volmne XVIIL 



{; 



REMOVAL OF CAUSES. 

g. Number^ Qualification^ and yustificatian of Sureties^ 

333- 
h, Determinaiton of Validity and Sufficiency of Bond^ 334. 

I. Defects Amended^ Disregarded^ or Waived^ 335. 

j. Suit on Bond^ 337. 

31. Proceedings on Petition for Removal^ 337. 

a. Pleadings in Answer to Petition^ 337. 

b. Hearing on Petition^ 338. 

c. Determination of Sufficiency of Application^ 338, 

d. Determination of Questions of Fact^ 340. 

32. Order Granting Petition for Removal^ 342. 

33. Order Denying Petition for Removal, 344. 

34. Rehearing of Application, 345. 

35. Vacating Order of Removal, 345. 

36. Costs on Granting or Dismissing Application, 347. 

37. Divestiture of jurisdiction of State Court, 347. 

a. Simultaneous with Filing of Petition and Bond^ 347 

b. Inhibition of Further ProceecUngs, 349. 

c. Validity of Further Proceedings, 350. 

d. Petititioner for Removal ParticipcUing in Further Pra» 

ceedings, 353. 

38. Acquisition of jurisdiction by Federal Court, 354. 

a. Jurisdiction Before Time for Filing Record, 354. 

(i) For Granting Provisional Remedies, etc, 354. 
(2) For Granting Motion to Remand or for Determi^ 
nation of Merits, 354. 

b. Filing Copy of Record, 35 c. 
i) Duty to File and Who May File, 355. 
•2S Time for Filing, 355. 

3) What Constitutes Record, 355. 

4) Authentication of Record, 356. 
5^ Effect of Filing Incomplete Copy, 356. 

(6) Notice of Filing, 356. 

(7) Effect of Laches in Filing, 356. 

c. Motion to Docket Cause, 3 c 7. 

39. Nature, Extent, and Exercise of jurisdiction Acquired^ 357. 

a. In General, 357. 

b. Motion to Quash Service of Process, 358. 

c. Time to Plead, 360. 

</. Following State Prcutice, 361. 

e. Filing New Pleadings, Recasting PlecuUngs, and 

Repleader, 362. 

f. Preservation of Proceedings Had in State Court, 363. 

(i) Status of Prior Rulings in State Courts 363. 

(2) Attachments and Bonds, 364. 

(3) Receiverships, 365. 
,4) InjuncHons, 365. 

5) Inchoate Proceedings, 365. 

g. Costs Before and After Remoi^al, 366. 

40. Remand of Cause to State Court, 366. 

a. Power and Duty to Remand, 366. 

166 Volume XVIIL 



i 



REMOVAL OF CAUSES. 






(i) J^or Want of yurisdictian^ 366. 
(tf) In General^ 366. 
^^) At Any Time^ 367. 

2) For Irregularities in Removal Proceedings^ 368. 

3) After Elimination of Grounds of Remavaly 368. 
i. Waiver of Right of Remand^ 369. 

(i^ For Want of jurisdiction^ 369. 
2S ^i5?r Formal Irregularities^ 370. 
3) ^<?r Delay in Filing Petition for Removal^ 370. 
€. Estoppel to Resist Remand^ 371. 

d. Remand on Stipulation^ 372. 

e. Controverting Allegations of Fact^ 372. 

(i) By Plea in Abatement^ 372. 

{2\ By Petition to Remand or by Affidavits^ 374. 

(3) Burden of Proof, 374. 

f. Motion to Remand^ 775. 

(i) Necessity of Motion^ 375. 
^2) Who May Make Motion, 375. 

(3) Time for Motion, 375. 

(4) Form and Contents of Motion, 376. 

(5) Notice of Motion, 376. 

g. Hearing and Determination of Motion to Remand, ^jj. 

(i) Determined by Face of Record^ 377. 

(2) Rule of Decision — Prior Decisions in Same 

Circuit, 378. 

(3) Cause Remanded Where jurisdiction Doubtful, 

378- 
k. Order Granting or Denying Motion to Remand, 379. 

U Vacating Order Granting or Denying Motton to 

Remand, 379. 

j. Costs on Remand or Dismissal, 38a 



{i\ Power to Award Costs, 380, 



Exercise of Discretion, 381. 
41. Second Application for Removed After Remand^ 384. 
4a. Resumption of jurisdiction by State Court, 384. 

a. Restoration of Jurisdiction — How Effected^ 384. 

b. Duty of State Court to Proceed, 385. 

c. Order of Remand Not Reviewable, 385. 

d. Effect of Proceedings Had in Federal Court, 386. 
43. Auxiliary Remedies in Removal Proceedings, 386. 

a. Mandamus and Prohibition, 386. 

b. Certiorari, 387. 

c. Injunction to Restrain Further Proceedings After 
Removed, 388. 

Appeal or Error in State Courts, 390. 

a. yurisdiction to Review Orders in Removal Proceedings^ 

390- 

b. Appealability of Orders in Removal Proceedings, 391. 

1) Of Order of Removed, 391. 

2) Of Order Denying Application, 393. 

3) Of Miscellaneous Orders, 395. 

1^7 Volume XVin. 



REMOVAL OF CAUSES. 

c. Supersedeas or Stay of Proceedings^ 395. 

d. Review After Final yudgment^ 396. 

e. Exceptions and Record on Appeal^ 396. 

f. Presumptions on Appeal^ 398. 

g, judgment and Order of Remand^ 398. 

h. Proceeding on Mandate in Court jBelow^ 399. 

45. Review by United States Supreme Court on Error to State 

Courts 399. 

46. Appeal or Error in Federal Courts^ 40a 

a. Appealability of Orders and Review of Final J^w^" 

menty 400. 

b. Objection^ Exception^ Assignment of Error ^ and Record^ 

402. 

c. judgment and Mandate^ 403. 

EL Fboh One Fedebal Ooubt to Ahotheb, 403. 

in FbOX TEEBITOBIAL to FEPEBAL C0T7BTS» 408. 

1. Authority and Grounds for Removed^ 408. 

2. Waiver of Right of Removal^ aio. 

3. On Whose Application Removal May Be Made^ 411. 

4. Time for Application^ 411. 

5. To What Court Application Is Made^ 41a. 

6. Form and Contents of Application^ 412. 

7. Notice of Application^ 413, 

8. Bond for Removal^ 413. 

9. Hearing and Order of Removal y 413. 

10. Filing Papers in Federal Court y 414. 

11. Extent of yurisdiction Acquired by Federal Court y 414, 

12. Remand and Costs on Remand^ 414. 

1 3 . Appeal and Error ^ 415. 

17. Tbox Oke State Coubt to Ahotheb, 415. 

I. Of Civil Causes y 415. 

a. Authority ana Grounds for Removc^y 415, 

b. Waiver of Right of Removal ^ 417. 
r. Amount in Dispute ^ 418. 

d. Time for Application^ 418. 

e. Who May Make Application^ 419. 

f. Removal by Consent or Stipulation^ 419. 

g. Application for Remoz^aly 420. 
h. Bond or Undertakings 420. 

(i) Necessity and Sufficiency ^ 420. 
(2) Action On^ 422. 
/. Order of Removal ^ 422. 

J, Consummating Removal by Entering Cause^ 423. 
k. Validity of Proceedings After Divestiture of yurisdic" 

tion by Removal ^ 423. 
/, Ejfect of Removal on Attachment or Bail^ 424. 
m. Extent of jurisdiction Acquired by Removal^ 424. 
«. Remand 0/ Cause y 424. 
o. Appeal and Error y 426. 
a. Of Criminal Causes^ 426. 

158 Volume XVIII. 



REMOVAL OF CA USES. to F6dml Oovru. 

I Fboh Stats to Febebal Covets — 1. ConstitntioiLality of 
Bemoral Acts. — The various Acts of Congress now in force for 
the removal of causes from state to federal courts have been 
pronounced constitutional in numerous cases,* on the ground that 
jurisdiction by removal is a method of exercising the original 
jurisdiction conferred on the federal courts by the Constitution.* 

2. Bight of Bemoval Entirely Statutory — a. In General. — The 
fact that the federal Circuit Court may have original jurisdiction 
of a case is not sufficient to justify a removal. The right of 
removal is wholly statutory and cannot be exercised unless by 
virtue of some provision in an Act of Congress.  

*. Enumeration of Various Removal Acts. — The removal 

acts which have been of material interest were as follows: 

JodioUry Aot of 1789. — The twelfth section of the Judiciary Act of 
1789 provided for the removal of suits against an alien, or by a 
citizen of a state in which the suit was brought against a citizen 
of another state, and also for the removal of suits between citizens 
of the same state claiming lands under grants from different 
states.* It has been entirely superseded by subsequent acts. 

The Foree Aet, — In 1833 Congress passed the Force Act, so 
called, providing for the removal to the federal courts of suits or 
prosecutions against federal revenue officers.* It was incor- 
porated in section 643 of the United States Revised Statutes, 
together with provisions which extended the right of removal to 
suits or prosecutions against certain federal election officers. The 
provisions last mentioned have been repealed,* but the pro- 
visions in respect to federal revenue officers are still in force.* 

Suits for Aeti Done Daring the Bebellion. — There was a provision in an 
Act of Congress passed in 1863 for the removal of suits or prose- 
cutions against civil or military officers for authorized acts done 
during the rebellion.* It is of no further interest and may have 
been impliedly repealed. 

I. Gaines v, Faentcs, 92 U. S. 10; Stole v, Fairfield C. PI., 15 Ohio St. 
Chicago, etc., R. Co. v. Whitton, 13 388. See also Kulp v. Ricketls, 5 
*ra/l.((;.S.)270; Virginia r. Rives, 100 Phila. (Pa.) 308, 20 Leg. Int. (Pa.) 268. 
v. S. 313; Tennessee v, Davis. 100 U. 8. Johnson v. Wells, gi Fed. Rep. 4; 
S. 257; Ames v. Kansas, iii U. S. Phoenix Ins. Co. v. Pechner, 95 U. S. 
449; Fisk V. Henarie, 32 Fed. Rep. 417; 185; In r^Cilley, 58 Fed. Rep. 978; Man- 
Friedman V. Israel, 26 Fed. Rep. 801; ley v. Olney, 32 Fed Rep. 708; Shedd v. 
Girardey v. Moore, 3 Woods (U, S.) Fuller, 36 Fed. Rep. 609; Cary v. Cur- 
397; Haire v. Rome R. Co.. 57 Fed. tis, 3 How. (U. S.) 236; Dennistoun v. 
Rep. 321; Meadow Valley Min. Co. v. New York, etc., R. Co., i Hilt. (N. Y.)66. 
Dodds, 7 Nev. 143; Laird v. Connecii- 4. Act of Sept. 24, 1789, i U. S. Stat, 
cat, etc., R. Co., 55 N. H. 375. at L. 73, c. 20, § 12. 

2. Bushnell v. Kennedy. 9 Wail. (U. 5. Act of March 2. 1833, 4 U. S. Stat. 

S.) 387; Chicago, etc., R. Co. v. Whit- at L. 633. 

ton, 13 Wall. (U. S.) 270; Arapahoe 6. 28 U. S. Stat, at L. 36, c. 25. 

County V, Kansas Pac. R. Co.. 4 Dill. 7. By virtue of the express provision 

^' S.) 277; Dennistoun v. Draper, 5 of the Act of 1887-1888, 24 U. S. Stat. 

Blaichf. (U. S.) 340. at L. 555, 25 U. S. Stat, at L. 436. 

It was formerly considered to be a See infra^ I. to. Suits and Prosecutitms 

speclesof appellate jurisdiction. Mar- Against Federal Revenue Officers, 

tlnr. Hunter, i Wheat. (U. S.) 304; %. Act of March 3. 1863, 12 U. S. 

159 Volume XVIII. 



Jwm State REMOVAL OF CA USES. to Fad«na Oowti. 

Denial of Giyil Sights. — Certain Acts of Congress were passed 
during the period between 1863 and 1870 providing for the 
removal of suits or prosecutions against persons who were denied 
any right secured by any law providing for the equal civil rights 
of citizens. These acts were merged in sections 641 and 642 of 
the United States Revised Statutes and are still in force.^ 

Separable Oontroveny Act — In 1 866 Congress passed what is com- 
monly called the separable controversy act, which provided for 
removal in certain cases by less than all of several defendants.' 
That act was substantially embodied in section 639 of the United 
States Revised Statutes, and later with some modification in an 
act passed in 1875' which has been superseded in respect of that 
provision by the Act of 1 887-1 888, now in force.* 

Prejvdioe or Local Inflnenoe Act — In 1 867 Congress passed an act for 
the removal of a cause on the ground of prejudice or local influ- 
ence.* The provision was re-enacted in section 639 of the United 
States Revised Statutes, which is superseded by the Act of 1887- 
1888, containing a similar provision.* 

Suits Against Federal Corporations. — An act passed in 1 868 provided 
for the removal of suits against federal corporations other than 
banking corporations.''' It was re-enacted in section 640 of the 
United States Revised Statutes, but repealed by the Act of 
i887-i888.» 

Action by Alien Against Federal Civil Offloer. — An act passed in 1872 
provided for the removal of an action by an alien against a civil 
officer of the United States, and is perhaps still in force,* except 
as to the amount in controversy, which may be governed by the 
Act of 1887-1888.** 

Judiciary Aot of 1875. — Many of the foregoing provisions were 
re-enacted in an act of 1875.** 

Act of 1887-1888. — The last-mentioned act was amended and 
mainly superseded by the Act of 1887.** The latter act is still in 
force in form and substance as it was actually passed by Congress, 
but by reason of serious errors in grammar, orthography, and 
arrangement its enrolment was corrected by the Act of 1888,'* 

Stat, at L, 756, § 5- See infra, I. 13. 7. 15 U. S. Stat, at L. 226, c. 255. 
Suits for Acts Done During the RebeU 8. 24 U. S. Stat, at L. 552; 25 U. S. 

lion. Stat, at L. 433. See infra, I. 16. ^. (i) 

1, By the express provisions of the {b) Suit By or Against Federal Cor- 
Act of 1 887-1888. See infra, I. 11. poration. 

Denial of Civil Rights, 9. 17 U. S. Stat, at L. 44, re-enacted 

2. 14 U. S. Stat, at L. 306, c. 288. in Rev. Stat. U. S., § 644. 

8. i8 U. S. Slat, at L. 471, c. 137, § 3. 10. 24 U. S. Stat, at L. 552; 25 U. S. 

4. 24 U. S. Stat, at L. 552; 25 U. S. Stat, at L. 433. 

Slat, at L. 433. See infra, 1. 16. b, 11. 18 U. S. Stat, at L. 470, c. I37' 
Diverse Citizenship and Separable Con- 12. 24 U. S. Stat, at L. 552. 
trov€rsy. 13. 25 U. S. Slat, at L. 433. 

5. 14 U. S. Stat, at L. 558, c. 196. " The act [of 1887] printed on the 

6. 24 U. S. Stat, at L. 552; 25 U. S. statute-book conforms to the earol- 
Stat. at L, 433. See infra, I. 17. Re- ment, but the enrolled act, when cooi- 
m^oval for Prejudice or Local Influence, pared with the original papers on file 

m Volume XVHI. 



^m iteti REMOVAL OF CA USES. u Fedmi ooirtik 

and throughout this article both of those acts constitute what is 
herein uniformly referred to as the Act of 1 887-1 888. 

8. Bole (d Conitraotioii of Semoval Acts. — The removal provi* 
sions of the Judiciary Act of 1789 * were strictly construed.* The 
Act of 1875,' providing for the removal of causes to the federal 
court, was intended to enlarge the right of removal and to extend 
the jurisdiction of the federal courts, especially in respect to con* 
troversies between citizens of different states, up to the limit of 
the federal Constitution,"^ and the statute was construed in fur- 
therance of that object.* But the Act of 1887--1888, which now 
governs removals,* was designed to contract the jurisdiction of 
the federal courts, both original and by removal/ and the tend- 
ency is to construe it strictly against the petitioner for removal.* 
i Statutory Bequirements to Be Strictly Complied With. — It is a 

in the secretary's office, contains Michigan Stove Co., oi Fed. Rep. 290; 

tweoty-iive mistakes in spelling, in Fox v, Soaihern R. Cfo., 80 Fedf. Rep. 

paactaation, in changing and omitting 946; Thurber r. Miller, 67 Fed. Rep. 

words, and in the structure of the bUl 378; Dangherty v. Western Union Tel. 

^that is, by changing paragraphs. Co., 61 Fed. Kep. 139; Brigham v, C. 

CoDg. Rec, March 14., 1888, pp. 2102, C. Thompson Lumber Co., 55 Fed. 

2103." i'^rLacombe, J.finSwayne r. Rep. 883; In re Cilley, 58 Fed. Rep. 

Boflston Ins. Co., 35 Fed. Rep. 2. 980; Camprelle v. Balbacb, 46 Fed. 

1. I U. S. Stat, at L. 79, § 12. Rep. 81; Tennessee Coal, etc., Co. v. 

2. Bryan v. Ponder, 23 Ga. 482. Waller, 37 Fed. Rep. 546; Security Co. 
" If tile defendant is not strictly en- v, Pratt, 65 Conn. 179; Chappell v. 

titled to have his cause removed, we Chappell, 86 Md. 543. 
are bouad to maintain our jurisdic- 8. Dwyer v, Peshali, 32 Fed. Rep. 

tion." Redmond r. Russell, 12 Johns. 498; Hayes f/. Todd, 34 Fla. 238; Slate 

(^'^•)i53. V. Sullivan, no N. Car. 518. See also 

3. Act of March 3, 1875, 18 U. S. the preceding note. 

SiaL at L. 470, c. 137. Hot with Unreasonable fltriotnoss. -« 

i Pirie v. Tvedt, 115 U. S. 45; " Yet. notwithsUnding this. manifestly 
Thurber v. Miller, 67 Fed. Rep. 376; restrictive policy, the new act should 
hre Cilley, 58 Fed. Rep. 978; Glover be judicially treated, so far as it goes, 
f. Shepperd, 15 Fed. Rep. 835; Arapa* as other voluntary legislative grants of 
boe CcuQiy V, Kansas Pac. R. Co., 4 jurisdiction are, and nothing should 
Dill. (U, S.) 279; Girardey t*. Moore, 3 be implied, as some of the cases coo- 
Woods (U. S.) 400; Garrett v, Bonner, sidering the act seem to suggest, from 
y^ La. Ann. 1306. See also Ames v, those restrictions themselves, which it 
Kansas, III U. S. 471. inconsistent with the rule of a liberal 

B. Glover v. Shepperd, 15 Fed. Rep. construction in furtherance of the ac- 
^35- Compare Alabama t/. Wolffe, 18 complishment of the designated pur- 
eed. Rep. 838; Levy v, Laclede Bank, pose of the congressional grant, what- 
's Fed. Rep. 193. ever that purpose be." Gavin ». 

•• 24 U. S. Stat, at L. 552, c. 373; 25 Vance, 33 Fed. Rep. 86. 

U- S. Stat at L. 433, c. 866. ** The general result of the Act of 

7* Wabash Western R. Co. v. Brow, 1887-1888 has been to greatly diminish 

J^U. S. 277; Hanrick V. Hanricic, 153 the jurisdiction of the Circuit Court, 

U. S. igy. Y\%\i t\ Henarie, 142 U. S. and it may be assumed that such was 

4^7; /m re Pennsylvania Co., 137 U. S. the general purpose of Congress In its 

454; Smith V. Lyon, 133 U. S. 320; enactment; but we cannot assume 

^ArtiQ p^ Baltimore, etc., R. Co., T51 such a purpose, and then, in the en- 

^' S. 667; Mexican Nat. R. Co. v. deavor to carry it out, ignore the obvl- 

l^Avidton, 157 U. S. 208; Tennessee ous meaning of the language of the act 

^ Uaion, etc.. Bank, 152 U. S. 462; itself." Per Barr, J., in Jackson, 

Hartford, etc., R. Co. z\ Montague, 94 etc., Co. v, Pearson, 60 Fed. Rep. 

"ed. Rep. 228; Waco Hardware Co. v. 127. 

18 Encyc. PI. & Pr. — 11 101 Volume XVIII, 



rnm 8Uto REMOVAL OF CA USES. to Fedoral Conrti. 

general rule that in order to procure the removal of a cause the 
petitioner for removal must strictly comply with the statutory 
requirements in respect to the procedure, at least as to all juris- 
dictional matters.^ 

6. Bight of Kemoval Not Impaired by State Legislation. — The 
statutes of a state cannot prevent the removal to a federal court 
of a suit which is within the judicial powers of the United States 
if the defendant brings himself within the terms of the federal 
statutes which authorize the removal.* The state legislature 
cannot, by merely investing certain courts with exclusive juris- 
diction over certain subjects,' nor by declaring particular contro- 

1. Delbanco v. Singletary, 40 Fed. v. Burnsidc, 121 U. S. 186 [explaining 
Rep. 178; Wilcox, etc., Sewing Mach. Doyle v. Continental Ins. Co., 94 U. S. 
Co. V, Follett, 2 Flipp. (U. S.) 265; 535]; Southern Pac. Co. v. Denton, 146 
Clippinger v, Missouri Valley L. Ins. U. S. 202; Moore v. Chicago, etc., R. 
Co., I Flipp. (U.S.)459; Fisk v. Fisk, 4 Co., 21 Fed. Rep. 819; Allen v. Texas, 
Mart. N. S. (La.) 678; Mahone v. Man- etc., R. Co., 25 Fed. Rep. 513; Chi- 
chester, etc., R. Corp., 11 1 Mass. 72, cago, etc., R. Co. v. Becker, 32 Fed. 
where the court said that '* the require- Rep. 849; Hartford F. Ins. Co. v. 
ments of the Ac! of Congress must be Doyle, 6 Hiss. (U. S.) 461;' Com. v. 
strictly and fully complied with;" Jellico Coal Co., 97 Ky. 246; Com. v. 
Amory v. Amory, 36 N. V. Super. Ct. East Tennessee Coal Co., 97 Ky. 238; 
520, holding that there must be** strict, Erie R. Co. v. Stringer, 32 Ohio St. 468; 
literal, and perfect compliance with Baltimore, etc., R. Co. r.Cary, 28 Ohio 
every provision required by the act;" St. 208; Railway Pass. Assur. Co. zf. 
Bates V. Baltimore, etc., R. Co., 39 Pierce, 27 Ohio St. 155 {overruliti^ New 
Ohio St. 157. See also Crane v, York L. Ins. Co. v. Best, 23 Ohio St. 
Reeder, 28 Mich. 532. 105, which affirmed Best v. New York 

3. American Finance Co. v. Bost- L. Ins. Co., 2 Cine. Super. Ct. 329]; 

wick, 151 Mass. 27: Fidelity Trust Co. Texas Land, etc., Co. v. VVorsham, 76 

V. Gill Car Co., 25 Fed. Rep. 738; Hul- Tex. 556; Rece v. Newport News, etc., 

bert V. Russo, 64 Fed. Rep. 8, holding Co., 32 W. Va. 164. 

that a state, statute which should pro- Earlier Cases to the Contrary^ such as 

vide in substance that a defendant People v. Judge, 21 Mich. 577, and 

could not remove a cause while he was Home Ins. Co. v. Davis, 29 Mich. 238, 

in default for nonpayment of motion are now of no authority, 

costs imposed by the state court would 8. Marshall v. Holmes, 141 U. S. 598; 

be void. Barrow v, Hun ton, 99 U. S. 80. Sec 

Legislation Affecting Foreign Corpora- also Johnson v. Waters, 11 1 U. S. 640: 

tions. — If the intent of a statute is to Arrowsmith v. Gleason, 129 U. S. 86; 

impose as a condition upon foreign Payne v. Hook, 7 Wall. (U. S.) 425. 

corporations before they are allowed to Thus a legislative enactment confer- 

do business in a state such action on ring upon a probate court exclusive 

their part as will deprive them of, or jurisdiction of all proceedings or suits 

prevent them from seeking, the juris- involving the settlement and distribu- 

diction of the federal court, it is inop- tion of the estates of deceased persons 

erative and void. Hollingsworth v. does not exclude the jurisdiction of the 

Southern R. Co., 86 Fed. Rep. 353, federal courts where the other condi- 

where the court said: ** No state legis- tions exist. Clark v. Bever, 139 U. S. 

lature can lawfully impose such a con- 102; Hess v. Reynolds, 113 U. S. 

dition in express terms upon any 73. 

corporation seeking to do business in a A state statute providing that a bill 

state, nor would the acceptance of any to set aside a judgment can be brought 

such condition bind such corporation, only in the courts of the county where 

nor can any state legislature by indi- the judgment was rendered will not 

rection accomplish that which it cannot prevent a federal court from acquiring 

do directly." See also Home Ins. Co. jurisdiction of such a suit. Davenport 

V, Morse, 20 Wall. (U. S.) 445; Barron v. Moore, 74 Fed. Rep. 951. 

162 Volume XVIII. 



ftaa State REMOVA L OF CA USES. to Federal Conrte. 

versies to be special proceedings and not civil suits at law or in 
equity,* nor by *' hedging about the commencement of suits by 
a statutory procedure which could not be employed in the federal 
courts," * deprive the latter of jurisdiction of a cause in its nature 
removable. 

6. Waiver of Sight of BemovaL — - It is competent for a party to 
waive his right of removal to a federal court,* either by stipulation 
or agreement or by conduct which evinces a plain purpose to do 
so.* If a defendant has done nothing in the state court whereby 
he has secured some benefit which should estop him from 
repudiating his former action, he will not, as a general rule, be 
held to have waived his right of removal.* Conversely, if he has 

1. In re Jarnecke Ditch, 69 Fed. must be taken to be so identified that 
Rep. 163. whatever was done in one of them will 

2. In re Statsman County, 88 Fed. conclude the parties on the same point 
Rep. 337, holding that a proceeding in the other." 

under the North Dakota statute for the Taking Appeal with Sapenedeas. — In 

collection of delinquent taxes was re- Chicago, etc., R. Co. v, Minnesota, 

movable although of such a character etc., R. Co., 29 Fed. Rep. 337, a case 

(bat owing to its procedure it could not of removal under the Act of 1875, it 

be commenced in the federal courts, was held that by appearing to a motion 

To the -same effect are Colorado Mid- for a temporary injunction and by tak- 

land R. Co, v. Jones, 29 Fed. Rep. 193; ing an appeal and supersedeas to the 

/nre jarnecke Ditch, 69 Fed. Rep. 163; Supreme Court of the state from an 

Warren v, Wisconsin Valley R. Co., 6 order granting the injunction, the de- 

Biss. (U. S.) 425. See also Franz v. fendant waived his right of removal. 

Wahl, 81 Fed. Rep. 9; Little Rock ProseontiiLg Certiorari. — In Hudson 

Junction R. Co. v. Burke, 66 Fed. River R., etc., Co. v. Day, 54 Fed. 

Rep. 83; Elliott V. Shuler, 50 Fed. Rep. 545, the defendant landowner in 

Rep. 454. Compare Hartford, etc., R. condemnation proceedings appealed 

Co. V. Montague, 94 Fed. Rep. 227. from the award of commissioners to 

1 Bell V. Bell, 3 W. Va. 183; Wad- the state Circuit Court, where he filed 

leigh V, Standard L., etc., Ins. Co., 76 a petition for removal, and at the same 

Wis. 439. See also New York, etc., time moved for and obtained a writ of 

Land Co. v. Martin, (Tex. Civ. App. certiorari from the state Supreme 

1^)25 S. W. Rep. 475; Hill v. Hen- Court to review all the proceedings up 

derson, 13 Smed. s. M. (Miss.) 688. to that time. The writ was duly 

1 Smithson v, Chicago, etc., R. Co., served, its mandate obeyed, and the 

(Minn. 1898) 73 N. W. Rep. 853. allegations of the respective parties 

ByProcuing a Change of Venue after heard and taken into consideration by 

the denial of his petition for removal, the Supreme Court, but no judgment 

it was held that the defendant waived had been rendered therein, when a 

his right of removal on that petition, motion to remand was made and 

Wausau First Nat. Bank v. Conway, 67 granted in the federal court, on the 

Wis, 210, approved \n Northern Pac. R. ground that the right of removal had 

Co. ». McMullen, 86 Wis. 509, where been waived. The court «V^</ Amy z/. 

the court said that the defendant by Manning, 144 Mass. 153 [o^rm^^Man* 

his own act made it impossible to re- ning v. Amy, 140 U. S. 137], as *' very 

move the case on the first application. much in point." 

Tryhg One of Several Games. — Where 5. Hulbert v. Russo, 64 Fed. Rep. 8. 

there are several actions for the same '* To operate as a cvaiver the act of 

cause between the same parties in a the party must be irreconcilably repug- 

state court, and the parties proceed to nant to the assertion of his legal 

trial in one, the other cannot after- right." Whiteley Mall*»able Castings 

wards be removed to the federal court. Co. v. Sterling worth R. Supply Co., 83 

Evans v. Smith, 21 Fed. Rep. i, on the Fed. Rep. 853. 

ground that ** inasmuch as a judgment Waiver of Personal Servloe. — A stipu- 

in one would bar the other, the causes lation by a nonresident in a suit begun 

103 Volume XVIII. 



From State REMOVAL OF CA USES. to Fodml Conrti. 

received a consideration for the relinquishment of his right, he 
ought not to be allowed to exercise it.* 

7. From Wliat Court a Suit May Be Kemoved. — The removal act 
provides for removal of a suit " brought in any state court." • 

Jutioe of the Peaoo. — It has been held that a cause cannot be 
removed from the court of a justice of the peace.* 

by attachment, submitting: himself to eral court, may be considered as hav- 

the jurisdiction of the state court and ing waived the right of removal by 

agreeing to be bound by its judgment subsequently moving in the state court 

as if he had been personally served, to dismiss the suit, was left undecided 

does not estop him from removing the in Scoutt v. Keck, 73 Fed. Rep. 007. 

cause. Southern Pac. Co. v'. Stewart, A party does not waive the right of 

88 Ga. 13. removal by remaining in the state 

Speoial Appeanuioo and Motion to Sis- court and contesting the case on the 

miss. — Where a defendant made a merits, if the state court, upon due ap- 

special appearance and moved to dis- plication, wrongfully refuses to order 

miss the case for want of service of a removal of the cause and forces him 

process and took a bill of exceptions to trial. Richards v. Rock Rapids, 31 

to the order of the court overruling his Fed. Rep. 506. See for numerous 

motion, it was held that he had not other cases on the same point in/ra^ I. 

waived his right of removal. Baum* 37, d. Petitioner for Removal Partici- 

gardner r. Bone Fertilizer Co., 58 Fed. pating in Further Proceedings, And 

Rep. I. under such circumstances a failure to 

Agreement for Crontinnanoe, — An agree- enter a copy of the record at the next 

ment between counsel before the be- term of the federal court does not pre- 

ginning of the term that the cause judicie the defendant's right. Balti- 

shall be continued for the term is not more, etc.. R. Co. v, Koontz, 104 U. S. 

a waiver of the right of removal. 14. Compare Springer v. Howes, 69 

Southern Pac. R. Co. v. Harrison, 73 Fed. Rep. 851. 

Tex. 107. X. Belief from Default. — Where a de- 

Oiving Bond to Belease an Attachment fendant was in default for want of an 

is not a waiver of the right. Purdy v, answer, and stipulated in writing with 

Muller, 81 Fed. Rep. 513; Whiteley the plaintiff that in consideration of 

Malleable Castings Co. v. Sterling- being relieved from his default and 

worth R. Supply Co., 83 Fed. Rep. 853. allowed to answer the issues made 

Compare Bell v. Bell, 3 W. Va. 183. should be tried in the state court and 

Consenting to a BeiBKrenoe was held to the defendant would abide by the 
be a waiver in Hanover Nat. Bank v. judgment, it was held that he was de- 
Smith, 13 Blatchf. (U. S.) 224. Contra^ barred from claiming a right of re- 
Ketchum v. Black River Lumber Co., moval after answering and going to 
4 Fed. Rep. 142. trial in pursuance of the agreement. 

Prooeodings After Filing Petition for Smiihson v, Chicago, etc., R. Co., 

BemovaL — Filing an answer in the (Minn. i8g8) 73 N. W. Rep. 853. 

state court after filing a petition and 2. Act of 1887-1888; 24 U. S. Stat, at 

bond for removal does not constitute a L. 552, c. 373; 25 U. S. Stat, at L. 433. 

submission to the jurisdiction of the c. 866. 

state court. Brisenden v. Chamber- 8. Rathbone Oil Tract Co. v. Raucb, 

lain, 53 Fed. Rep. 307. 5 W. Va. 79. holding that where the 

If the petition and bond were duly case stood for trial de novo in the state 
filed, the defendant does not waive his Circuit Court on appeal from the jus- 
removal by consenting to an order that tice it might be removed from that 
the case shall stand under the rules to court. See New York I. & P. Co. v. 
plead and try at the next term of the Milburn Gin, etc., Co., 35 Fed. Rep. 
court. Waite v. Phoenix Ins. Co., 62 225. 
Fed. Rep. 770. Contra. — In Wood v. Matthews, a 

Whether a party who has filed a peli- Blatchf. (U. S.) 370, 23 Vt. 735, a civil 

tion for removal in time, and, without action in a justice's court against a 

calling it to the attention of the judge, United States revenue officer was re- 

thereupon files the record in the fed- moved under the Act of T833, 4 U. S. 

164 Volume XVHI. 



fttn 8taU REMOVAL OF CA USES. to Federal Coiirtt. 

Gamxnifleioners. — Proceedings before a special tribunal, such as 
commissioners of appraisement * or a board of county commis- 
sioners,* have been held not removable. 

Probate Court. — But a controversy in a probate court may be 
removed ' unless it fails to satisfy the definition of a suit.* 

Coort to Whloh Game Eaa Been Tzaniferred. — The state court mentioned 
in the statute means the court in which the suit is pending at the 
time when the petition for removal is filed,* and consequently the 
suit is removable from a state court to which the cause has been 
transferred for trial under the state statute.* But it cannot be 
removed from a court to which it has been transferred on a motion 
for change of venue, if the time for removal had expired when 
the transfer was made.''' 

Appellate Court — A suit cannot be removed from a court to 
which it has been taken by appeal or error after final judgment 

Slat, at L. 633, § 3, Rev. Stat. U. S., order which was made directed that it 

§643, aad jurisdiciioQ was entertained should be entered in Erie county, 

without objection. That act provides In Bristol v. Chapman, <Supm. Ct. 

for removal of suits, etc./' commenced Gen. T.) 34 How. Pr. (N. Y.) 140, it 

io a court of any state." To the same was held that the order for removal 

effect see Georgia v. Port, 3 Fed. Rep. could be made only by the court in 

117, 4 Woods (U. S.) 513, a criminal which the action was to be tried, but 

prosecution against a revenue officer. the decision was based upon the sup- 

1. See infra, I. 9. i. Eminent Domain position that notice of the application 
Proceedings. was necessary, which is now regarded 

2. A Board of Coanty Gommifliionon in as incorrect. 

auditing and allowing or rejecting 6. American Finance Co. v. Bost- 

claims presented to it cannot be wick, 151 Mass. 19. In that case the 

deemed a court. Fuller v, Colfax action was originally brought in the 

County, 14 Fed. Rep. 177, where the Superior Court, and at the request of 

court pointed out that the concomitants the defendant, under Pub. Stat. Mass » 

of a court, such as a judge, clerk, c. 152, § 8, and upon his making an 

sheriff, or marshal, were absent; that affidavit as provided by that statute, it 

tlie board had no right to issue pro- was transferred to the Supreme Judi- 

cess to compel attendance of parties or cial Court, there to proceed " as if 

witnesses, and no power to enter a originally brought in that court." 

formal judgment, or to execute one Within the time prescribed by the Re- 

if rendered. moval Act of 1887-1888, the defendant 

8. Craigie v, McArthur, 4 Dill. (U. filed his petition for removal in the Su- 

S.)474. preme Judicial Court, and it was held 

4. See infra, I. 9. a. Suits, that the suit was removable. Speak- 

6. American Finance Co. v. Bost- ing of the state statute for the transfer 

wick, 151 Mass. 19. of causes the court said that " the ob- 

Order in Another Jodicial Diftriot. — ject plainly is to give to the defendant 

In Erisman v. Pidcock, (Supm. Ct. the right to elect in which one of the 

Spec. T.) 62 How. Pr. (N. Y.) 327, an two courts the cause should proceed, 

aciion in the Supreme Court, the which is similar to the right which the 

county designated in the complaint for plaintifT had when he began the suit." 

the trial of the action was the county Hess v. Reynolds, 113 U. S. 73. was 

of Erie, but it was held that an order a case removed on the ground of pre- 

>or its removal made in the coanty of judlce or local influence from a state 

New York was not irregular, since it court to which it had been transferred, 

was only motions necessarily made on account of the disqualification of 

npon notice that the law required to be the judge, and the removal was sus^ 

made within the judicial district in tained. 

vMch the action was pending for trial 7. Wausau First Nat. Bank v. Con* 

^ in an adjoining county. But the way, 67 Wis. 210. 

165 Volume XVHI. 



Inm 8Uto REMOVAL OF CA USES. to Vadana Grati. 

in the court of original jurisdiction.* 

8. To What Court Kemoval Is Hade. — The Act of 1887- 1888 
provides for removal of a suit** into the Circuit Court of the 
United States for the proper district." • That phrase first occurs 
in the Act of 1875.' In the earlier statutes the Circuit Court to 
which the suit was removable was the Circuit Court of the United 
States for the district where the suit was pending.* The niean- 
ing of these different provisions is the same;* that is, the cause 
should be removed to and the record entered in the federal Circuit 
Court for the district in which the suit is pending.* 

9. Bemovable Suits or Controversies — a. Suits — The Bamovai Aet 
provides only for the removal of *' suits." ^ 

Deflnition and General Charaeteriities. — The term " suit " is under- 
stood to apply to any proceeding in a court of justice by which 
an individual pursues that remedy in a court of justice which the 
law affords him.® It must be a proceeding in which a judgment 

1. Lowe V, Williams, 94 U. S. 650 tory as the commonwealth of Massa- 
[affirming Williams v. Lowe, 4 Neb. chusetls. 

400J; Du Vivier v. Hopkins, iit Mass. 6. Cobb v. Globe Mut. L. Ins. Co., 3 

129; Craigie McArthur, 4 Dill. (U. S.) Hughes (U. S.) 452; Knowlton v. Con- 

474, holding that a case on appeal from gress, etc., Spring Co., 13 Blatchf. (U. 

a probate court was not removable; S.) 170; Ex p. State Ins. Co., 18 Wall. 

In re Frazer, 9 Fed. Cas. No. 5,068; (U. S.)4I7. See alsoSuydam v. Snnith, 

Miller v. Fian, i Neb. 267; Beery v. i Den. (N. Y.) 263; Norton v. Hayes. 4 

I rick, 22 Gratt. (Va.) 484. See also Den. (N. Y.) 248. 

Waggener v. Cheek, 2 Dill. (U. S.) 560; Bemoval After Change of Venue. — 

Stevenson v. Williams, 19 Wall. (U. S.) Where the cause before removal has 

572; Bryant v. Scott, 67 N. Car. 391. been transferred from the court of one 

But compare Douglas v. Caldwell, 65 county to that of another it should be 

N. Car. 250, where a cause pending in removed to the federal Circuit Court 

the Supreme Court was removed on of the district where it is pending at 

the ground of local prejudice under the time of removal. Hess v. Rey- 

Act of 1867, and the court said: ** We nolds, 113 U. S. 73. 

cannot consider the mere fact that the 7. Act of 1887-1888, 24 U. S. Stat, at 

case is pending in an appellate court L. 552, c. 373; 25 U. S. Stat, at L. 433, 

sufficient to take it out of the Act of c. 866. 

Congress." 8. Per Chief Justice Marshall in 

2. 24 U. S. Stat, at L. 552, c. 373; 25 Weston v, Charleston, 2 Pet. (U. S.) 
U. S. Stat, at L. 433. c. 866. Section 3 464, where it was further said that 
of the same act, relating to the pro- " the modesof proceeding may be vari- 
cedure for removal, describes the court ous, but if a right is litigated between 
as " the Circuit Court to be held in the parties in a court of justice, the pro- 
district where such suit is pending." ceeding by which the decision of the 

8. Act March 3, 1875, 18 U. S. Stat, court is sought is a suit.'* Quoted \n 

at L. 470. c. 137. Exp, Milligan. 4 Wall. (U. S.) 112; 

4. Rev. Stat. U. S..§ 639; Act March Upshur County v. Rich, 135 U. S. 
2, 1867, 14 U. S. Slat, at L. 558, c. 196; 474; Holmes v. Jennison, 14 Pet. (U. 
Act July 27, 1866, 14 U. S. Stat, at L. S.) 566; In re Jarnecke Ditch, 69 Fed. 
306, c. 288; Judiciary Act of 1789, i U. Rep. 161; Richardson v. Green, 61 Fed. 
S. Stat, at L. 79, c. 20, g 12. ^^£' ^^3* Lackawanna Coal, etc., Co. 

5. American Finance Co. v, Bost- v. Bates, 56 Fed. Rep. 740: In re Chi- 
wick, 151 Mass. 25, holding that a suit cago, 64 Fed. Rep. 898; McCuUough v, 
in Massachusetts is properly removed Large, 20 Fed. Rep. 311; White v, 
on a petition praying for its removal Philadelphia, 8 Phila. (Pa.) 243, where 
to the Circuit Court of the United the court said: ** There is some 
Stales for the district of Massachusetts, ground for the assumption that in the 
as the district includes the same terri- Act of Congress referred to the word 

166 Volume XVIIL 



hm 8Utd REMOVAL OF CA USES. to Federal Gonrii. 

or decree can be rendered or some action taken affecting the 
rights of parties.* It is no objection to removal that the suit 
after removal cannot be maintained in the precise form in which 
it was begun.* 

The Deeiiion of the Highest Court of a State upon the question whether 
a particular proceeding is a suit at law or in equity does not 
conclude the federal court when called upon to decide the same 
question.' 

Administrative Proceedings. — A proceeding not in a court of justice, 
but carried on by executive officers in the exercise of their proper 
functions, is purely administrative, and cannot be called a suit;* 
but on appeal docketed in a court where the case is to be heard 
de novo it becomes a suit.* 

Petition of Intervention. — The contention arising out of a petition 
of intervention which seeks relief against defendants therein 
named may constitute a suit.* But the mere filing of a petition 

'sait' is used in a more restricted 4. Upshur County v. Rich, 135 U. S. 

sense, •• and " refers to a proceeding 467. 

10 which the defendant is brought Presentation of Claim Against County. 
into court upon process." ** In law — In Delaware County z/. Diebold Safe, 
lan^ua^e it [a suit] is the prosecution etc., Co., 133 U. S. 473, it was held 
of some demand in a court of justice." that where a claim against a county is 
Cohens v. Virginia, 6 Wheat. (U. S.) heard before county commissioners, 
407- though the proceedings are in some re- 
'* A judgment which conclusively de- spects assimilated to proceedings be- 
lermines a right or obligation, so t.hat fore a court, yet they are not in the 
the saiQs matter cannot be further liti- nature of a trial inUr partes^ and are 
gated except by writ of error or appeal, merely the allowance or disallowance 
is a.Q exercise of judicial power; and a by county officers of a claim against 
pxci^^eding in a court of common law the county, upon their own knowl- 
0^ ^9uiiv which culminates in such a edge, or upon any proof that may be 
^t&^goient is a * suit ' within the mean- presented to them, but that an appeal 
\o^ol the federal judiciarv acts." In from their decision, tried and deter^ 
rtSluisnaan County, 88 Fed. Rep. 341. mined by the Circuit Court of the 
V In re Iowa, etc., Constr. Co., 6 county, is a suit removable to the fed- 
Fed. Rep. 801, 2 McCrary (U. S.) 178. eral court. See also Fuller v. Colfax 
InClafflin V. Robbins, I Flipp. (U.S.) County, 14 Fed. Rep. 177, a similar 
603, it was held that a proceeding by case, where the court said: *' Two 
petiiion under the Ohio statute against parties to a suit seem to be almost indis- 
aa assignee for the benefit of creditors pensable: one who seeks redress, and 
to procure an allowance of the peti- the other who commits a wrong or 
lioner's claim was a suit and remov- withholds what is justly due another. 
Able. The parties must stand in such rela- 
'• Thus a statutory action in com- tion to each other that the machinery 
non-law form against an executor to of the court will operate on them when 
recover a legacy may be removed, their powers and their aid are invoked, 
though it will be necessary to assign it No such a condition of things existed 
to the equity side of the federal court, so long as this claim remained before 
Wilson V, Smith, 66 Fed. Rep, 81. the county board," See further in^ra, 
8. Upshur County v. Rich. 135 U. S. I. 9. t. Eminent Domain Proceedings^ 
477; /»r^Jarnecke Ditch, 69 Fed. Rep and I. 9. / Proceedings Relating to 
^61. Compare In re Stutsman County Taxation. 

88 Fed. Rep. 340, where the state court 6. See the cases cited in the preced- 

had decided that the proceeding was a ing note. 

suit; Lackawanna Coal, etc., Co. v, 6. In re Iowa, etc., Constr. Co., 10 

Bates, 56 Fed. Rep. 738. Fed. Rep. 401. 

167 Volume XVIII. 



frM Mftii RiSMOVAL OF CA t/SES. to Feteia OMrti. 

of intervention without the issuing of notice or process of any 
kind is not a suit.^ 

fn^tMmg (Mrsa Voi Jiidi«e. *^ If the subject-matter of a proceed- 
ing is one over which the state court has no jurisdiction, it cannot 
constitute a suit.* 

But flui AUsABflnt Soit against a nonresident without personal 
service of process is removable.* 

state Court in Ponesiion of Bat. — If the proceeding is a Suit within 
the meaning of the removal act the fact that the state court has 
possession of the subject-matter of the controversy cannot pre- 
vent the removal.^ 

1« /ifr^Iowa, etc., Constr. Co., 6 Fed. erat court to entertain it on removal. 

Rep. 799, 2 McCrary (U. S.) 178, where although in some other form it would 

the court ftaid: *' Upon general pHncU hate plenary jurisdiction over the case 

pici I should Bay without heoitation that made between the parties. • » * 

process is essential to the institution of The case of Kelly v. Virginia Protec- 

a suit. In the Very nature of the case tion Ins. Co., 3 Hughes (IT. S.) 449, 

it must be necessary to bring the party does not establish a contrary doctrine, 

defendant iAto court before arty Step however broad its expressions may be. 

can be talcen to change the forum^ or There the question was one of mere 

for any other purpose affecting his locality of jurisdiction, or, to speak 

rights." See also, to the point that perhaps without entire accuracy^ of 

process is an essential ingredient of a venue only. The federal court had 

Suiti White v* Philadelphia, 8 Phila. jurisdiction of the particular territory 

(Pa.) S43. in which the suit was brought, while 

2« Trester V. Missouri Pac. R. Co., thecorporationcourt from which it was 
t3 Neb. a4S| where a railway corpora- removed did not have jurisdiction of 
tion sought to take land by eminent the place where the defendant was 
donlain in a state other than that located, and the plea was that the state 
wherein it was chartefed, the state court did not have jurisdiction because 
constitution forbidding it, and ah neither the plaintiff nor defendant re- 
Order of removal was reversed on ap- sided in the city, nor did the cause of 
peal with instructions to dismiss the action arise there. Perhaps this was 
condemnation proceeding; Fidelity an entire absence of jurisdiction over 
Trust Co. V. Gill Car Co., 25 Fed. Rep. the subject-matter and would invoke 
739, where the coutt said: " If a citi- the ruling I make; but I doubt if the 
ieti of Pennsylvania holding a promis- court intended in that case to go as far 
sory note made by a citizen of Ohio on as counsel would press it here." See 
whtsh he desired to bHng suit should also Edwards v, Connecticut Mut» L. 
go into a state court of exclusive crim- Ins. Co., 20 Fed. Rep. 4S3; SimpkiDs 
Inal jurisdiction^ file his complaint, sue v. Lake Shore, etc., R. Co., 19 Fed. 
out bis writ of summons, have it Rep. 602. 

served in the Usual way, and then re- S. Barney v. Globe Bank, 5 Blatchf. 
move the controversy into this (Ourt, (U. S,) 107; Bliven v. New England 
could it be pretended that we should Screw Co., 3 Blatchf. (U. S.) kti; 
retain the juHsdiction on the grounds Sayles v. North-western Ins. Co., 2 
urged heft? » * * There would be Curt. (U. S.) 212; Martin t^. Thompson, 
no * suit ' in court any more than if the 3 McCord L. (S. Car.) 167. 
proceeding had been Commenced in a 4k Kern r. Huidekoper, 103 U. S. 
moot court, such as art organised in 465, a removal of an action of replevin, 
law schools to teach practice. * * * where the court said: ** The conten- 
Wherever there is a total absence Of lion of the plaintiff in error seems to 
jurisdiction over the Subject-matter in be that an action of replevin where the 
the state court, so that it had no pov^r sheriff of a state Court is the defendant 
to entertain the suit in which the Con- is not remo^able> because the sheriff, 
troversy was sought to be litigated in an officer of the State court, being in 
ks then existing or any other form, possession of the property, the subject- 
there can be no jurisdiction in the fed- matter of the controversy^ the federal 

168 Volume XVIII. 



hm iuu REMOVAL OF CA USES. to Fedml Ckmrti. 

A Aurt fli n Mi cannot be removed ; to be removable the case as 
fttt entirety must be brought into the federal court. ^ 

Alter BiniiMi. — A suit cannot be removed after it has been 
regularly dismissed by the plaintiff.* 

*. Controversies. — > Besides the general provision for the 
removal of ** suits ** the removal act also provides specifically for 
the removal of certain suits in which there shall be *' a contro- 
verey," etc.* It is well settled that in order to constitute a con- 
troversy it is not essential that any pleadings shall have been filed 
by the defendant.* 

C. Of a Civil Nature. — The Removal Act of 1 887-1 888 provides 
(or the removal of *' suits of a civil nature," and suits of a penal 
nature are not removable under the act.* 

Vfttttre of Suit — Bow Betermiaed. — It is not the form but the nature 
ot the action which determines whether it is a civil suit within 
the meaning of the statute.* A suit to recover a penalty for 

court is without legal authority or of a separable controv'ersy and for prej- 

power by writs, process, or orders to udice or local influence. 24 U. S. 

wreit its possetston from him. There Stat, at L. 532, c. 373; 25 U. S. Stat, at 

isttoiappori either in the Act of Con- L. 433, c. 866. 

IT'esB for the removal of causes or in 4. Creagh v. Equitable L. Assur. 

•oyctseadjudgedby this court, for this Soc, 83 Fed. Rep. 840; Ketchum v. 

posiUon." Black River Lumber Co., 4 Fed. Rep. 

1« ThuB in Chicago, etc., R» Co. v. 142; Bailey v. American Cent. Ins. 

Minnesota, etc., R. Co., 29 Fed. Rep. Co., 8 Fed. Rep. 686. The following 

337t the defendant, before filing his cases to the contrary are now of no au- 

pediioQ for removal, appealed from an thority: Fiynn v, Des Moines, etc., R. 

order granting a temporary injunction, Co., 63 Iowa 490; Stanbrough v. 

•odit Was held that since the jurisdic- Griffin, 52 Iowa 112; Bosler v. Booge, 

Uon of the appellate court, which had 54. Iowa 251. 

attached to that part of the suit, would ft. Act of 1887-1888, 24 U. S. Stat, at 

ootbe terminated by a removal of the L. 552. c. 373; 25 U. S. Stat, at L. 433, 

reit of the suit remaining in the trial c. 866. 

court where the petition for removal ** Beyond doubt (except in cases re- 
was filed, the suit was not removable, moved from a state court in obedience 

In Bowman r. Bowman, 30 Fed. to an express Act of Congress in order 

Rep. 849, a suit for divorce, the de- to protect rights under the Constitution 

feodant denied the plaintiff's allegation and laws of the United States), a Cir- 

of marriage, and It was held that such cuit Court of the United States cannot 

issue could not be removed to the fed- entertain jurisdiction of a suit in be- 

tnl court for trial, it being conceded half of the state, or of the people 

that the main suit was not removable, thereof, to recover a penalty imposed 

The coatt said : " The statute allowing by way of punishment for a violation 

tbe removal of cases from the stale to of a statute of the state.'* Huntington 

the federal count by its provisions v. Attrill, 146 U. S. 672. 

clearly contemplates that when re- As to removal of criminal proceed- 

Bio^cd the caw must be removed into ings sec in^ra, I. ro. Suits and Prose^ 

this court for all purposes, and for a cnthns Against Federal Ptvenue Officers; 

final judgment or decree, no matter L 11. DenUi of Civil Rights, 

*htch way the issues may be found." 6. Indiana v, Alleghany Oil Co., 85 

& New England Mortg. Security Co. Fed, Rep. 873: Texas ». Day Land, 

'•Aughe, 13 Neb. 504. etc., Co., 41 Fed. Rep. 230; Ames r. 

"Of court* a suit terminated has Kansas, iii U. S. 460; Iowa v. Chi« 

ttased to be a suit." Hewiit v. cago. etc., R. Co.. 37 Fed. Rep. 497, 

Phelps, 105 U. S. 395. where Judge Brewer in an exhaustive 

t> See the provisions in the Act of opinion goes over the whole subject; 

168H888 tor removal on the ground Dey v, Chicago, etc., R. Co., 45 Fed. 

ie9 Volume XVIII. 



tram 8tatd REMOVAL OF CA USES. to Fadml Courii. 

violation of a statute, of a criminal nature, even when the remedy 
provided by the statute is a civil action, is not a suit of a civil 
nature.' But where the object of an action is indemnity for a 
civil injury, it is not a penal action, though the statute punishes 
the act committed by the defendant as a crime.* If the action 
is penal in its nature the fact that the state statute declares it to 
be a civil action does not make it removable.' 

A Prooeeding for a Furely Grimioftl Contompt of Court would not be 
removable.* 

Rep. 84. See also Wisconsin v. Peli- to remove a bill in equtiy filed to en- 
can Ins. Co., 127 U. S. 265. join the operation of a brewery, which, 

1. Texas v. Day Land, etc., Co., 41 though in form civil in its nature, was 

Fed. Rep. 228. 49 Fed. Rep. 593; Fer- clearly an action to enforce the penal 

guson V. Ross, 38 Fed. Rep. 161; Iowa laws of the state; but that*' in reply 

V, Chicago, etc., R. Co., 37 Fed. Rep. to this it may be said that in Schmidt 

503, where the court concluded that v. Cobb, 119 U. S. 286, an order re- 

'* an action to enforce a penalty, what- manding a similar case was affirmed 

ever may be its form, is one of a crimi- in the Supreme Couit by a divided 

nal nature. As such, within the vcte; that the cases of Mugler and 

removal act, it is not a removable Ziebold were considered and decided 

case." together; that the Mugler case was on 

An action by a state to recover a appeal from the Supreme Court of 

penalty for violation of a statute mak- Kansas; and that in the Ziebold case 

ing it unlawful to permit the flow of counsel preferred to discuss and have 

gas or oil from a well into the open air determined the absolute rights of the 

is not removable. Indiana v. AUe- parties, rather than any question of 

ghany Oil Co., 85 Fed. Rep. 870. form or removal. So that the question 

An Aetion of Dobt on a Sooognisanoo of removal seems not to have been 



i» 



for Good Bohavior is not removable, considered by the court. 

Respublica v. Cobbet, 3 DaU. (Pa.) 8. Bunford v. Strother, 10 Fed. Rep. 

467. 406, 3 McCrary (U. S.) 253, a statutory 

Enforcement of Anti-tmft Law. — An proceeding by a creditor to enforce the 

information in equity by the attorney- liability of stockholders and directors 

general of a state to enforce against of a corporation for fraudulent acts. 

the defendant a prohibition from doing Robertson v. Kettell, 64 N. H. 430, was 

business in the state, the cause of ac- an action of debt by a stockholder in a 

tion alleged consisting of conduct corporation to recover a penalty pro- 

which within the meaning of the state vided by statute when a corporate offi- 

statute was an offense or misdemeanor, cer or agent should refuse to furnish to 

was held not to be removable. Mo- a stockholder or creditor a copy of any 

loney v. American Tobacco Co., 72 record, account, or paper in his keeping 

Fed. Rep. 801, where the court said which the stockholder or creditor was 

that ** the circumstance that an injunc- entitled to inspect, and the court was 

tion is the instrument, and apparently apparently inclined to the opinion that 

the only instrument, of the state's dis- it was a suit of a civil nature and 

pleasure does not change the essential removable. 

nature of the conduct complained of, 3. Indiana v, Alleghany Oil Co., 85 

or of the legal sanction to which said Fed. Rep. 873. 

conduct must be referred.** See also, 4. Williams Mower, etc., Co. r. Ray- 
for an application of the same princi- nor, 7 Biss. (U. S.) 245, holding, how- 
pie, Dey V. Chicago, etc., R. Co., 45 ever, that where in a suit in the state 
Fed. Rep. 82. court a proceeding for contempt which 

Bill to Eiqoin Operation of Brewery. — was in the nature of a civil remedy for 
In Iowa V, Chicago, etc., R. Co., 37 the benefit of the party injured had 
Fed. Rep. 502, Judge Brewer stated resulted in an order adjudging the de- 
that it had been said that in the cases fendant guilty, the removal of the 
of Mugler v. Kansas and Kansas v. main suit carried the contempt pro- 
Ziebold, 123 U. S. 623, the Supreme ceeding with it. See McLeod v. Dun- 
Court impliedly recognized the right can, 5 McLean (U. S.) 342; Kirk v. 

170 Volume XVIII. 



REMOVAL OF CA USES. to Federal ConrU. 

Ail Xadietmant for Gaiuing Death by wrongful act under a statute pro- 
viding for the infliction of a " fine " to be paid to the widow or 
heirs of the deceased is a criminal proceeding, especially where 
the higliest state court has so construed the statute.^ 

d. Ajt Common Law or in Equity. — The phrase '' suits of 
a civil nature at common law," in the statute describing remov- 
able suits,* is used in contradistinction to equity, admiralty, and 
maritime jurisdiction.' It does not mean and is not confined to 
suits based on rights which owe their origin to the common law 
as distinguished from rights created by statute.* 

e- AIandamus Proceedings. — a proceeding for an original 
writ of mandamus, commenced in a state court, is not a suit of a 
civil nature at law or in equity within the meaning of the removal 
act, and therefore it is not removable from a state to a federal 
court,* unless it is subordinate and ancillary to a suit rightfully 

Mil«va.ulcee Dust Collector Mfg. Co., 26 way in the city. In holding that the 

Fed. Rep. 507. federal cqurt had no jurisdiction, 

1. Me w Hampshire V.Grand Trunk R. Baker, J., said: •* In the absence of 

Co., 3 Fed. Rep. 887. Sec also Lyman authority to the contrary, I should 

c. Hoston, etc., R. Co., 70 Fed. Rep. have been of the opinion that such a 

409- suit, where the requisite diversity of 

S»- Act of 1887-1888, 24 U. S. Stat, at citizenship existed, was removable 

L- 55a, c. 373; 25 U. S. Stat, at L. 433, from a state court into a Circuit Court 

c. 006^ providing for removal of *' suits of the United States as a civil suit at 

of a civil nature at common law or in law for the enforcement of the rights 

eqaity.- of the city alone. See Washington 

••^ f*arsons v. Bedford, 3 Pet. (U. S.) Imp. Co. v. Kansas Pac. R. Co., 5 

A3^» Gaines v. Fuentes, 92 U. S. 23; Dill. (U. S.) 489; People v. Colorado 

Bt\seuclcn t/. Chamberlain, 53 Fed. Cent. R. Co.. 42 Fed. Rep. 638; People 

^^P- 309, where the court said: *' The v. Rock Island, etc., R. Co., 71 Fed. 

puTas^ means all those suits in which Rep. 753; [Erwin v. Walsh, 27 Fed. 

\^t tights must be established and the Rep. 579]. It is settled, however, too 

fttDCdies sought by the procedure firmly to be open to doubt or debate, 

^aown and prevailing in the courts of that the authority of the Circuit Courts 

law, as distinguished from the proce- of the United States to issue writs of 

dare and the remedies prevailing in mandamus is confined exclusively to 

and administered by the courts of those cases in which they may be 

equity — that is, by a court and jury." necessary as ancillary to, or in aid of, 

4. Brisenden v. Chamberlain, 53 Fed. a jurisdiction already acquired. They 
Rep. 307, holding that a statutory have no authority in any case to issue 
action for death by wrongful act is a writ of mandamus as an original 
removable, citing Gordon v. Longest, writ. The construction placed upon 
16 Pet. (U. S.)i03; Texas, etc., R. Co. v. the first clause of section 14 of the Ju- 
Cox, 145 U. S. 594; Dennick v. Central diciary Act of September 24, 1789, con- 
R. Co., 103 U.S. II; Exp. McNiel, 13 tinued in force in section 716, Rev. 
Wall. (U. S.) 243; and Van Norden v. Stat. 1878, denies authority to the Cir- 
Morton, 99 U. S. 378.* See also Elliott cuit Courts of the United States to 
V. Shaler, 50 Fed. Rep. 454, a proceed- issue writs of mandamus except as an- 
infT for a probate sale. ciliary to, or in aid of, a pre-existing 

5. Indiana v. Lake Erie, etc., R. jurisdiction; and it has been held that 
Co., 85 Fed. Rep. i, an action begun the present Acts of Congress defining 
by the state on the relation of a ciiy in the jurisdiction of those courts have 
a state court of Indiana to procure a not enlarged their jurisdiction in re- 
^nt of mandamus to compel the spect to writs of mandamus.*' The 
change and reconstruction of an over- court then laid down the proposition 
licad crossing theretofore erected by stated in the text, to which the follow- 
^ defendant over and across a high- ing cases were cited: M'lntire v, 

171 Volume XVIII. 



Vr«m tutt REMOVAL OF CA USES. to Fedml cmti. 

pending in the federal Circuit Court. ^ 

/. Quo Warranto Proceedings. — An information in the 
nature of quo warranto is usually deemed a civil suit and remov- 
able if the other conditions exist.* Since the state is a party to 
the proceeding, it is not removable on the ground of diverse 
citizenship,' but only when the record presents a federal question.^ 

g. Habeas Corpus Proceedings. — A proceeding for a writ 
of habeas corpus is a suit,^ but the matter in dispute is not 
regarded as having a money value, and therefore the federal court 
cannot acquire jurisdiction by removal.^ 

h. Proceedings for Injunction or Prohibition — iidiuetion 

•nito. — The United States Revised Statutes provide that " the 
writ of injunction shall not be granted by any court of the United 
States to stay proceedings in any court of a state, except in cases 
where such injunction may be authorized by any law relating to 
proceedings in bankruptcy."^ It follows that a suit for an 
injunction to stay proceedings in a state court cannot be removed 
to a federal court prior to the granting of an injunction.^ But if 
a preliminary injunction has already been granted by the state 

Wood, 7 Cranch (U. S.) 504; Bath to its own process to try the right of 

County V, Amy, 13 Wall. (U. S.) 244; the corporation to exercise corporate 

Graham v. Norton, 15 Wall. (U. S.) powers within the territorial limits of 

427; Heine v. Levee Com'rs, 19 Wall, the state is a suit of a civil nature, and 

(U. S.) 655; Greene County v» Daniel, removable to a federal court If it pre- 

102 U. S. 187; Davenport v. Dodge sents a case arising under the laws of 

County, 105 U. S. 237; Louisiana v, the United States. Ames v. Kansas, 

Jumel, 107 U. S. /ii; Rosenbaum v, iii U. S. 449. For a similar case see 

Bauer, 120 U. S. 450 [affirming Rosen- Illinois v. lUinols Cent. R. Co., 33 

baum V, Board of Supervisors, 28 Fed. Fed. Rep. 721. 

Rep. 223]; Smith v. Bourbon County, S. See infra^ I. 16. a. (2) Where a 

127 U. S. 105; American Union Tel. Co. State Is a Party, 

V, Bell Telephone Co., i Fed. Rep. 698; 4. To Determine Title to OiBoo. — A 

U. S. V, Pearson, 32 Fed. Rep. 309; quo warranto proceeding by a relator 

State V. Columbus, etc., R. Co., 48 in the name of the state to determine 

Fed. Rep. 626; In re Vintschger, 50 the defendant's title to the office of 

Fed. Rep. 459; Gares r. Northwest Nat. president of a state corporation was 

Bldg., etc., Assoc, 55 Fed. Rep. 209; held not to be removable in Place v. 

Fuller V, Aylesworth, 75 Fed. Rep. Illinois, 69 Fed. Rep. 481. 

699; In re Forsyth, 78 Fed. Rep. In State v, Bowen, 8 S. Car. 382, it 

296. See also Woodruff v. New York, was held that quo warranto to deter- 

etc., R. Co., 59 Conn. 63; State v, mine the title to the office of president 

Johnson, 29 La Ann. 399. Compare tial elector did not present a federal 

Tennessee v, Whit worth, 117 U. S. 129, question and was therefore not remov 

139; New Orleans, etc., R. Co. v. Mis- able, 

sissippi. 102 U. S. T35. 5. Exp, MilHgan, 4 Wall. (U. S ) 112. 

1. In Washington v. Northern Pac. 6. Kurtz v, M6ffitt. 115 U. S. 487. 
R. Co., 75 Fed. Rep. 333, an action for See also Barry v, Mercein, 5 How. 
mandamus against a railroad company (U. S.) 103; Pratt v, Fitzhugh, i Black 
and a receiver thereof appointed by a (U. S.) 271. 

federal Circuit Court to control the 7. Rev. Stat. U. S., § 720. 

official conduct of the receiver was re- 8. Lawrence v, Morgan's R., etc., 

moved into the federal court, and a Co., 721 U. S. 634; Diggs v Wolcott, 4 

motion to remand was denied. Cranch (U. S.) 179; Edwards Mfg. Ca 

2. Agaiait Oorporation. — A suit v. Sprague, 76 Me. 53. See also Bon« 
brought by a state in one of its own durant v. Watson, 103 U. S. 288; Rog- 
courts against a corporation amenable ers v, Rogers, i Paige (N. Y.) 184. 

173 Volume XVIIL 



ftim «tate REMOVAL OF CAUSES. to Pedoral Courts 

court, the inhibition of the statute does not apply so as to pre« 
vent a removal.^ And a suit brought to enjoin the enforcement 
o( a fraudulent judgment is not within the category of suits to 
stay proceedings in a state court.* 

iMtioB for a Writ of FiohlMtion is a suit|* but it is doubtless irre* 
movable for the reason just stated in respect of injunction suits 
for a like purpose.^ 

I. Eminent Domain Proceedings. — An application to state 
railroad commissioners to obtain their approval of contemplated 
proceedings to condemn land by eminent domain is devoid of 
the characteristics of a suit, and is not removable.* So a pro- 
ceeding to take land by eminent domain begun before commis- 
sioners appointed to appraise the land is in the nature of an 
inquest to ascertain its value, and not a suit at law in the ordinary 
sense of the term, and is therefore not removable.* But on 
appeal from the award of the commissioners,^ or on a hearing of 
their report in court, with parties and pleadings,'* it takes the 
form of a suit at law and may be removed to a federal court if 
the other conditions for removal exist. Where the proceeding 
was originally instituted in a state court, and conducted like an 
ordinary lawsuit, it is a removable suit at its inception.* 

1. Hum p. Fisher, 29 Fed. Rep. 8oi, terson, 98 U. S. 406; Pacific R. Removal 

*^ere, however, the court expressed its Cases, 115 U. S. 19; In re Tarnecke 

^Pioion thai there was no sound reason Ditch, 69 Fed. Rep. 164. See also Hart- 

^or the distinction; Smith v, Schwed, 6 ford, etc., R. Co. v, Montague, 94 Fed. 

'^^d. Rep. 455; Bondurant v, Watson, Rep. 227; Fuller v, Colfax County, 14 

10} U. S. 287. Fed. Rep. 177. 

I. Marshall v. Holmes, 141 U. S. 7. Mississippi, etc.. Boom Co. v. Pat- 

589. terson, 98 U. S. 406; Pacific R. Removal 

8. Weston v, Charleston, 2 Pet. (U. Cases, 115 U. S. i; Warren v. Wiscon- 

S.)4*9. sin Valley R. Co., 6 Biss. (U. S.) 598. 

4. See In re Bininger, 7 Blatchf. (U. See also Hudson River R., etc., Co. v, 
S') 159: Rogers v Cincinnati, 5 Mc- Day, 54 Fed. Rep. 545; Mt. Washington 
Lean (U. S.) 337; and article Prohibi- R. Co. v, Coe, 50 Fed. Rep. 637; Climon 
TiOM, vol. 16, p. 1 102. V, Missouri Pac. R. Co., 122 U. S. 469 

5. New Vork, etc., R. Co. v, Cockcroft, 8. In re Jarnecke Ditch, 69 Fed. 

46 Fed. Rep. 881, where the court. Rep. i6z, a drainage proceeding under 

after citing the state statute, said: the Indiana statute, contemplating the 

"This proceeding involves only the taking of land for the improvement 

consent of the railroad commissioners and assessment of benefits, distinguish^ 

to the taking of the land. The land ing In re Chicago, 64 Fed. Rep. 897. 

cannot be taken in it, nor can the com- 9. Postal Tel. Cable Co. v. Southern 

pensatioQ for the land be fixed in it. R. Co., 88 Fed. Rep. 803; Sugar Creek, 

M they approve, the railroad company etc.. R. Co. v, McKell, 75 Fed. Rep. 

can proceed further; if they do not ap- 34; Kansas City, etc., R. Co. v, Inter- 

prove, it cannot. No issue is defined state Lumber Co., 37 Fed. Rep. 3, 36 

lorthem to try, or guide laid down for Fed. Rep. 9; Banigan r. Worcester,^ 

them to follow, in determining whether Fed. Rep. 392; Colorado Midland R. 

they shall grant or refase their ap- Co. c^. Jones, 29 Fed. Rep. 193; Mineral 

proval.  * » They render no Range R. Co. v, Detroit, etc.. Copper 

lodgment, but merely declare their Co., 25 Fed. Rep. 515; Northern Pac. 

own approval or disapproval of further Terminal Co. v, Lowenberg, 18 Fed. 

proceedings." Sec also White v. Rep. 339; Chicago r. Hutchinson, 

roiUdelphia, 8 Phila. (Pa.) 243. 15 Fed. Rep. 129; Matter of Barnes- 

9* Mississippi, etc.. Boom Co. v, Pat- ville, etc., R. Co., 4 Fed. Rep. 10, 8 

173 Volume XVIII. 



Vran BUto REMOVAL OF CA USES. to Fadirtl CourU. 

/ Proceedings Relating to Taxation. — An original 
assessment of property for taxation, made by assessors, is not a 
suit ; ^ nor in ordinary cases is an appeal from such assessment a 
suit.* But an appeal from an assessment, if referred to a court 
and jury, or merely to a court, to be proceeded in according to 
judicial ipethods, may become a suit.* And where the legality 
and constitutionality of taxes and assessments are subjected to 
judicial examination by an action against the collecting officer, 
by a bill for injunction, by certiorari, or by other modes of pro- 
ceeding, a suit arises which may come within the cognizance of 
the federal courts by removal.* 

k. Proceedings Relating to Wills and Administration 

— Prooeadings Belatlng to WilU. — While it is well settled that the 
federal courts have no probate jurisdiction,* there is a conflict of 
authority as to the removability of proceedings or suits to estab- 
lish or set aside wills. It has been held that a contest in the 

McCrary (U. S.) 216. See also Minne- ducted in a court of general jurisdic- 

apolis, etc., R. Co. v, Nestor, 50 Fed. tion. Distingttished in In re Jarnecke 

Rep. I. Compare Hartford, etc., R. Ditch, 6g Fed. Rep. 167, which was a 

Co. V. Montague, 94 Fed. Rep. 227. similar proceeding, but in the exercise 

In Searl v. School Dist. No. 2, 124 U. of the power of eminent domain. On 

S. 197, a petition was filed by a school the other hand, it has been held that a 

district in the County Court of Colo- proceeding in a state court to collect 

rado for condemnation of land for delinquent taxes where the primary 

school purposes, and it was held that object is to have the validity of the tax 

it was removable to the federal court judicially determined and all defenses 

by a landowner who was a citizen of cut off , has all the elements of a suit 

another state, since it was an adver- within the meaning of the removal act. 

sary judicial proceeding from the be- In re Stutsman County, 88 Fed. Rep. 

ginning although the state statute 337. disapproving In re Chicago, 64 Fed. 

provided for the ascertainment of dam- Rep. 897, above cited. 

ages by a commission of three free- 2. Upshur County v. Rich, 135 U. S. 

holders, unless at the hearing the 470, v/here the court said: *' By the 

defendant should demand a jury. laws of all or most of the states tax* 

In Kohl V. U. S., 91 U. S. 367, Mr. payers are allowed to appeal from the 

Justice Strong, delivering the opinion assessment of their property by the as- 

of the court, said: "It is difficult * *  sessor to some tribunal constituted for 

to see why a proceeding to take land that purpose, sometimes called a board 

in virtue of * ^ * eminent do- of commissioners of appeal; sometimes 

main, and determining the compensa- one thing, and sometimes another, 

tion to be made for it, is not, within the But whatever- called, it is not usually a 

meaning of the statute, a suit at com- court, nor is the proceeding a suit be- 

mon law, when initiated in a court." tween parties; it is a matter of admin- 

1. Upshur County v. Rich, 135 U. S. istration, and the duties of the tribunal 

472. are administrative, and not judicial in 

Exerdie of Taxing Power. — It has the ordinary sense of that term, though 

been held that a proceeding which is a often involving the exercise oi quasi- 

mece exercise of the taxing power is judicial functions. Such appeals are 

administrative, not judicial, and is not not embraced in the removal act.*' 

removable to a federal court. In re S. Upshur County v. Rich, 135 U. S. 

Chicago, 64 • Fed. Rep. 897, holding 473. 

that a proceeding solely for the purpose 4. Upshur County v. Rich, 135 U. S. 

of raising money by the exercise of the 473. 

taxing power for the construction of a 5. Ellis v. Davis, 109 U. S. 485; 
public improvement is not a suit, al- Gaines v. Fuentes, 92 U. S. 10; Burn- 
though such proceedings may be con- side's Succession, 34 La. Ann. 730. 

174 Volume XVIII. 



fim State REMOVAL OF CA USES, to Federal Conrti. 

original proceeding to probate a will, or on appeal from the pro- 
bate court, is removable where it is of an adversary nature, with 
parties before the court, and the decision therein is to be final ; * 
and on the other hand that a proceeding to probate a will in the 
probate court or on appeal therefrom is not removable ; ' that a 
statutory action to contest a probated will is removable,' and 
again that it is not removable.^ It has been held that an action 
to establish a lost will is removable.'^ A suit brought against a 
devisee by strangers to the estate to annul the will as a muniment 
of title and to limit the operation of the decree admitting it to 
probate is a removable suit.* 

Adminiitration Proeeedingt. — A proceeding to establish a claim in 
the probate court against a decedent's estate is a suit, and 
removable.'' And so is a contest on a proceeding for distribution 
in a probate court.® 

Frooeeding for Probate Bale. — A special proceeding by a personal 
representative to obtain a license to sell the lands of a decedent 
to procure assets for the payment of debts is removable.* 

HiMallaaeoiifl Proeeedingt in Probate Conrt. — Proceedings for the 

!• Franz v, Wahl, 8i Fed. Rep. 9; struction of a will, or the enforcement 

Brodhead v. Shoemaker, 44 Fed. Rep. of a decree admitting it to probate, 

S^S* See also Tibbatcs v. Berry, 10 B. there is no more reason why the federal 

Moo. (Ky.) 490. Compare Fraser v. courts should not take jurisdiction of 

Jennison, 106 U. S. 191; Reed v. Reed, the case than there is that they should 

31 Fed. Rep. 49. not take jurisdiction of any other con- 

*• ^^ re Cilley, 58 Fed. Rep. 977; troversy between the parties.'* See 

/» re Aspinwall, 83 Fed. Rep. 851. also Everhart r. Everhart, 34 Fed. 

Compare Fallen v. Cilley, 46 Fed. Rep. Rep. 82. 
892. 7. Clark v. Bever, 139 U. S. 96; Hess 

3. Richardson c Green, 61 Fed. Rep. v, Reynolds, 113 U. S. 73. See also In 
423. See also Gaines v, Fuentes, 92 re Foley, 76 Fed. Rep. 395. 

U.S. 18; Ellis V, Davis, 109 U. S. 485; Contra. — In Du Vivier v. Hopkins, 

American Bible Soc. v. Price, no U. S. 116 Mass. 125, it was held *.hat a claim 

61; In re Aspinwall, 83 Fed. Rep. 852; filed by a creditor ajifainstthe insolvent 

Upshur County r. Rich, 135 U. S. 476, estate of a decedent in the course of 

where the court said: "Although the settlement in the probate court was 

granting of probate of a will is not or- not a removable controversy. I'he 

dinarily a suit, yet, if a contestation court said: ** It is at least doubtful 

arises, and is carried on between par- whether a claim against an insolvent 

lies litigating with each other, the pro- or bankrupt estate is a * suit ' in any 

ceeding then becomes a suit." sense, under the judiciary acts of the 

4. Reed v. Reed, 31 Fed. Rep. 49, United States. Coit v, Robinson, 19 
distinguishing Gaines v, Fuentes, 92 U. Wall. (U. S.) 284. *• 

S. 10. See also Oakley v. Taylor, 64 Application by Widow for Yoar't Sap- 
Fed. Rep. 245; Cilley i-. Patten, 62 port. — In McElmurray v. Loomis, 31 
Fed. Rep. 498. Fed. Rep. 395, the court inclined to the 

6 Soathworth v. Adams, 4 Fed. Rep. opinion that an application by a widow 

If 9 Biss. (U. S.) 521, a case decided to a probate court to have a year's 

under the Act of 1875, and one whereof support awarded to her out of her de- 

the stale court in the particular in- ceased husband's estate was a mere 

stance had jurisdiction. incident to the administration, and not 

•• Gaines v. Fuentes, 92 U. S. 10, removable, 

^here ihe court said: " Whenever a 8. Craigie r. McArthur, 4 Dill. (U. 

controversy in a suit between such S.) 474. 

parties [citizens of different states] 9. Elliott v, Shuler, 50 Fed. Rep. 

wises respecting the validity or con- 454. 

175 Volume XVIII. 



Frm Bftato REMOVAL OF CA USES. to Fedena Oowlik 

appointment or removal of executors or administrators.^ and pro- 
ceedings in the probate court to determine the question whether 
the property of a deceased person is separate or community prop. 
erty,* are not removable. 

A BUI for tiM Conftmotloa of a wm is removable.* 

Bill bj Tnutoo for laftmotiom. — In one case it was declared doubtful 
whether the federal court could have jurisdiction by removal of a 
bill by trustees, appointed under state laws, for instructions in the 
settlement of a decedent's estate.* 

/. Ancillary Proceedings — (i) /« General. — It is the main 

suit or controversy between the parties that is removable, and 
not a mere sequence or dependency of a suit,' and where a pro- 
ceeding in a state court is merely incidental and auxiliary to an 
original action in that court, it cannot be removed to the federal 
court.^ But the fact that a bill in equity is intended to aid a 

1. Burnside's SuccesBion, 34 La. sail, and therefore not removable; 

Ann. 728. reaching this conclusion upon the 

8. In re Foley, 80 Fed. Rep. 949, dis' ground that the proceeding was under 

tinguishing Foley v. Hartley, 72 Fed. the state statute and necesBarily 

Rep. 571. brought in the court which rendered 

8. Security Co. v, Pratt, 65 Coon, the original judgment, and was in fact 

161. a proceeding to enable the state court 

4. Gordon v. Green, 113 Mass. 261. to determine whether its process had 

5. Webber v. Humphreys, 5 Dill. (U. been misapplied. The case was fol" 
S.) 225. lowed in Flash r. Dillon, 22 Fed. Rep. z, 

6. Chappell v, Chappell, 86 Md. 544; a proceeding for trial of the right of 
Cole V. La Chambre, 31 La. Ann. 44; property; King v. Shepherd, 20 Fed. 
Hospes V, Northwestern Mfg., etc.. Rep. 337: Hocbstadter v. Harrison, 71 
Co., 22 Fed. Rep. 565. See also Jack- Ga. 21, and in Besser v, Munford, 63 
son V. Gould, 74 Me. 578; West v. Au- Ga. 446. See also Harrison v. Shorter, 
rora City, 6 Wall. (U. S.) 739; and 59 Ga. 512; Bondurant v, Watson, 103 
supra, p. 169, note i. U. S, 281. 

'* Nothing less than a whole cause Where Origloal Bait Is Bamorsd. — 

can be removed into the Circuit Court '* Where, however, a claim is filed to 

of the United States under the Acts of property levied on under attachment. 

Congress. A part of the cause, or a and the attachment is removed, and 

controversy incidental to the main the claimant is a resident of the same 

cause, cannot be so removed." Per state as the defendants, the claim 

Gray, C. J., in Du Vivier r. Hopkins, should be removed with the attach- 

116 Mass. 128. ment.'* Hochstadter v. Harrison, 71 

Trial of Sight of Property. — In Alex- Ga. 21. 

andria First Nat. Bank v. Turnbull, 16 Controversy Tonehing Beosivership. «- 

Wall. (U. S.) 190, it appeared that the Where a court appoints a receiver in a 

bank had obtained a judgment in the suit, a controversy in that court be- 

state court against a debtor, and levied tween the receiver and a claimant of 

an execution upon certain cotton, the fund or between claimants is not 

Turnbull &. Co. asserted a claim removable. Buell v. Cincinnati, etc., 

thereto as owners, and gatre bond, as Constr. Co., 9 Fed. Rep. 351. 

required by the state statutes; and loit Relating to •nooession. — In Filer 

under the provisions of the statute the v. Levy, 17 Fed. Rep. 609, it was held 

state court ordered an issue to be tried that a suit for account by the executor 

before a jury to determine the right of of a deceased partner against the sur- 

property levied on. Thereupon Turn- viving partner who had qualified as 

bull & Co. filed a petition for the re- liquidating partner was not auxiliary 

moval of the cause. The Supreme to the settlement of the succession and 

Court held that the proceeding was was removable, 

auxiliary and incidental to the original Procstdiiig to dniot Tltla. — A special 

176 Volume XVIII. 



fnm Stali REMOVAL OF CA USES. to FederU Oowlf* 

court of law, or to prevent a party from availing himself of an 
inequitable suit or defense in a court of law in another pending 
action, does not deprive the bill of its character as an original 
sait.^ Where the relief sought in the new proceeding could have 
been obtained on mere petition in the original suit,* or by setting 
^P a defense therein,* it may be considered as ancillary and not 
removable. 

(2) Garnisknunt Proceedings. — A proceeding in garnishment 
i^^ merely auxiliary to the original action, and if the latter cannot 
be removed the former cannot be."* 

(3) Proceedings Connected with Judgments — 1» a«neral. — There 

can be no removal of a proceeding which is a mode of relief 

inseparably connected with an original judgment.* But a suit is 

iiot necessarily ancillary because it grows out of matters already 

^'^'gated and adjudicated between one of the defendants and the 

plaintiff.* 

^ ^d of jadgmmt. — A suit in equity in aid of a judgment and 
proceedings at law, to regulate and perfect rights already 
(Jet^tmined, is ancillary, and not removable.^ 

St&ltilory proceeding in a court to con- 5. Thus a proceeding under the oc- 

^rm s^tcs of land by a sheriff or other cupying claimant law of lovfa lor the 

nablic officer, being in substance a bill value of Improvremenls after judgoient 

lA chaacer/ to quiet title, is remov- in ejectment was held not to be remov- 



able. Parker v. Overman, 18 How, able. Chapman v. Barger, 4 Dill. (U. 

(U. S.) 137. S.) 557. 

1. Thtts, in Charter Oak F. Ins. Co. 6. Hatch v. Preston, 1 Biss. (U. S.) 
f. Star Ins. Co., 6 Blatchf. (U. S.J aoS, 19; Peltus v, Georgia R., etc., Co., 3 
pending; an action at law qq a policy of Woods (17. $.) 6^9. 
reiasarance the plaintiff brought a suit Oppo^ltloxi to Executory Prooosi in Lou- 
iaequiiyin the same court to reform islvia. — Where a suit was instituted 
and correct the policy on the ground of in Louisiana on a petition for executory 
misiake and to enjoin the defendant process, on a title importing^ con f es- 
froiQ setting up certain specified mat- sion of judgment, executory process 
ters in defense to the action at law. It had been ordered, and the debtor had 
Was held that the suit in equity was filed an opposition, denying the plain- 
removable, tiff's right and asking the revocation of 

% Wolcott V. Aspen Min., etc., Co., the order, it was held that the opposi- 

34 Fed. Rep. 822. tion was removable, since the order of 

8. Richmond, etc.. R. Co. v. Flndley, seizure and sale did not constitute a 

32 Fed. Rep. 641. judgment to which the opposition was 

1 Buford V. Stroiher, 3 McCrary (U. merely auxiliary. Lockhart v. Morey, 

^•)253, 10 Fed. Rep. 406; Pratt v, Al- 31 Fed, Rep. 497. See also Boatmen $ 

bright, 9 Fed. Rep. 634, 10 Biss. (U. S.) Sav. Bank v. Wagenspack, 4 Woods 

5"; PoMe V. Thatcherdeft, 19 Fed. (U. SJ 130, 12 Fed. Rep. 66. 

^^P- 49. in which cases judgment had 7. Thus, in Ladd v. West, 55 Fed. 

"*en entered up in the state court Rep. 353. the plaintiff recovered judg- 

^^aiast the defendants and the gar- ment against the defendant, an adjoin- 

nishee proceedings were supplemental ing landowner, for damages in con- 

^hereio; King v. Shepherd, 20 Fed. ducting his business in such a manner 

'^^P' 337; Weeks v. Billings, 55 N. H. as to constitute a nuisance. Later he 

371. a petition for removal before judg- brought another action at law against 

ment in (he main suit, where the eourt the same defendant, alleging the same 

said: '< xtiere is no provision by which kind of a grievance at a subsequent 

^°€ proceeding can be brought to a perioJ, and still later a suit in equity 

close, unless the trustee and the de- against the former defendant and his 

lendant are in the same court." partner, setting up the former Judg- 

18 Encyc. PI. & Pr. — la 177 Volume XVIII. 



From 8tote REMOVAL OF CA USES. to Federal Conrta. 

For Belief ▲gainit Judgment. — If a proceeding to annul a judgment 
is merely tantamount to the common-law practice of moving to 
set aside a judgment for irregularity, or to a writ of error, or to 
a bill of review or an appeal, it is to be deemed a supplementary 

ment and the pendency of the later why they should not be bound by the 
action at law, and praying for a consoli- judgment. It was held that this latter 
dation, perpetual injunction, and the proceeding was merely a continuance 
assessment and recovery of damages of the original action and was not re- 
accruing subsequent to the proceed- movable by the nonresident defend- 
ings at law, by reason of the wanton ants, as the other defendant was a 
and reckless manner of doing business, resident. 

It was held that the suit in equity was Suite to Subject Beal Eetate. — In Kala- 

a part and parcel and continuance of mazoo Wagon Co. v. Suavely, 34 Fed. 

the original litigation, and not remov- Rep. 823, a suit in equity by a judg- 

able. The court said: " I have doubt ment creditor to reach and subject to 

as to the power of this court, * * * the payment of the judgment real es- 

upon a motion to remand merely, to tate claimed by a third party, the latter 

order the pleadings recast for the pur- being the principal defendant and a 

pose of separating law and equity stranger to the first proceeding, was 

matter and compelling the claim for held to be removable, 
damages to be stated al law, with a In Bondurant v. Watson, 103 U. S. 

view of holding jurisdiction of that 281, affirming Watson v, Bondurant, 2 

part of the controversy for which the Woods (U.S.) 166, a judgment creditor 

remedy is at law, and remanding that levied on real estate as the property of 

part cognizable in an equity proceeding his debtor, and was about to sell, 

in aid of the judgmentand proceedings Watson, whose title came through the 

at law in the state court. Having such judgment debtor, claimed the property 

doubt, I do not undertake upon this and contended that it was not liable to 

motion to determine definitely whether the plaintiff's judgment, and brought 

a claim for damages of this character suit in the state court to enjoin the 

is, in an equitable sense, incident to judgment creditor from selling, and it 

the injunction jurisdiction, and there- was held to be a new, independent, 

fore cognizable in equity, but remand and removable controversy, 
the whole case as presented by the rec- A bill to enforce possession of prop- 

ord in its present shape." See also erty after a decree in a former suit ad- 

Wolcott V. Aspen Min., etc., Co., 34 judicating the title to be in the plaintifif 

Fed. Rep. 821. is ancillary though purchasers from 

*' Where the supplemental proceed- the original defendant are joined as 

ing is in its character a mere mode of codefendants in the new suit. Wolcott 

execution or of relief, inseparably con- v. Aspen Min., etc., Co., 34 Fed. Rep. 

nected with the original judgment or 821. 

decree, it cannot be removed, notwith- A Proceeding Againit a Stockholder of a 

standing the fact that some new con- Corporation, under a statute providing 

troversy or issue between the plaintiff that after execution against a corpora- 

in the original action and a new party tion returned nuila bona the judgment 

may arise out of the proceeding." creditor may, upon motion and notice 

Buford V. Strother, 3 McCrary (U. S.) in writing to a stockholder to be 

253. charged to the extent of unpaid stock. 

Proceeding to Bind Nonresident Defend- obtain an execution against him, is not 

ante. — In Fairchild v. Durand, (N. Y. an ancillary but an independent suit 

Super. Ct. Spec. T.) 8 Abb. Pr. (N. Y.) removable to a federal court. Lacka- 

305, an action was brought against wanna Coal, etc., Co. v. Bates, 56 Fed. 

several joint contractors, one of whom Rep. 737, disapprovirig Webber v, 

was a resident of the state, and the Humphreys, 5 Dill. (U. S.) 223. Sec 

others were nonresidents. Summons also Buford v. Strother, 10 Fed. Rep. 

was served only on the resident, but 406, 3 McCrary (U. S.) 253, a similar 

judgment was taken against all, and proceeding to charge stockholders for 

the nonresident defendants were there- alleged fraudulent b^cXs^ distinguishing 

upon served with summons, under Webber v. Humphreys,, 5 Dill. (U. S]j 

a statutory provision, to show cause 223. 

178 Volume XVIII. 



Itm Btoto REMOVAL OF CA USES, to Federal Courte. 

proceeding of which the federal court cannot entertain jurisdic- 
tion by removal.^ But if the proceeding is tantamount to a bill 
in equity to set aside a judgment or decree for fraud,* or to 
obtain relief against a judgment on the ground of accident or 
mistake,' then it constitutes an original and independent proceed- 
ing removable to a federal court."* 

A Writ of Beview is not a removable proceeding.^ 

(4) Ancillary Suits Against Receivers, — See infra, I. 16. 
c. (i) (c) Suit By or Against Receiver Appointed by Federal Court. 

m, Ox\LY Suits Within Original Jurisdiction of Federal 

Court — (i) As to Subject-matter. — Jurisdiction of civil suits by 
removal is conferred upon the federal courts only in those cases 
of which those courts would have original jurisdiction.^ It has 
been held that a proceeding which presents all the elements of a 
suit withiii the original jurisdiction of the federal court is remov- 
able notwithstanding it may involve matters of procedure which 
would prevent its commencement in that court.^ But the test 
of original jurisdiction is applied to removal cases with such 
insistence that the soundness of the foregoing proposition is not 
entirely free from doubt.® 

1. Barrovr v, Hunton, 99 U. S. 80, Co., 30 La. Ann. 56; Ralston v. Brit- 

vhere a sail was brought in one of the ish, etc., Mortg. Co., 37 La. Ann. 193. 

state courts of Louisiana to annul a 3. Pelzer Mfg. Co. v, Hamburg-Bre- 

jadgment rendered in a court of that men F. Ins. Co., 62 Fed. Rep. i. 

state, upon the ground that it was 4. Feigned Issue in Fenniylyania. — 

founded upon a default taken without Where a creditor seeks by means of a 

lawful service of the petition and a feigned issue authorized by the Penn- 

citation, and because prior to the judg- sylvania statute to set aside a fraud u- 

meot the parly seeking to have it set lent judgment against his debtor, the 

aside had been adjudged a bankrupt, proceeding is equivalent to a bill in 

The court held that the proceeding was equity for that purpose and is remov- 

equivalent in common-law practice to able as a distinct controversy. Fuller 

a motion to set aside a judgment for v. Wright, 23 Fed. Rep. 833. 

irregularity or to a writ of error coram 6. Jackson v. Gould, 74 Me. 564. 

vobis, and as the cause of nullity re- 6. Act of 1887-1888. 24 U. S. Stat, at 

laied to form only, the case was held L. 552, c. 373; 25 U. S. Slat, at L. 433, 

not to be cognizable in the federal c. 866. 

court, and was remanded to the state 7. In re Stutsman County, 88 Fed. 

court. Rep. 337, a statutory proceeding for 

" If, after judgment rendered, a suit the collection of delinquent taxes. 

is brought to control as to the mode 8. Hartford, etc., R. Co. v, Monta- 

and manner of execution, or even to gue, 94 Fed. Rep. 227; In r^ Cilley, 58 

prevent execution, there is plausibility Fed. Rep. 977: New York, etc., R. Co. 

and authority for holding that such v. Cockcroft, 46 Fed. Rep.88i; Dey v, 

subsequent suit is ancillary to the main Chicago, etc., R. Co., 45 Fed. Rep. 82; 

suit and therefore not removable.'* Reed v. Reed, 31 Fed. Rep. 49. 

Lockhart v, Morey, 31 Fed. Rep. 497. *' It is apparent from the language 

S. Marshall v. Holmes, 141 U. S. of the act that no suit can now be re- 

5^. a bill in equity to annul a fraudu- moved to a federal court which could 

lent judgment; Barrow v. Hunton, 99 not originally have been brought there, 

U. S. 80; Davenport v. Moore, 74 Fed. except when the sole objection to the 

l^cp. 948; Carver v. Tarvis-Conklin original jurisdiction was the nonresi- 

Mortg. Trust Co., 73 Fed. Rep. 9. See dencc of the defendant." La Monta- 

also Ladd v. West, 55 Fed. Rep. 354. gue v. T. W. Harvey Lumber Co., 44 

CotHfart Ranlett r. Collier White Lead Fed. Rep. 647. 

179 Volume XVIII. 



8uto REMOVAL OF CA USES. to Ftdmi c^orti. 

Sisreiie of fUio Polioo Powor. — A statutory proceeding in the exer- 
cise of the police power of the state has been held not removable. * 

Vodoral Xqvity Juriidietiom. — A federal court sitting as a court of 
equity cannot take original jurisdiction of a creditors* bill to 
subject property to the payment of a simple contract debt in 
advance of any proceeding at law, either to establish the validity 
or amount of the debt or to enforce its collection.* Hence such 
a suit cannot be removed from a state to a federal court.' 

(2) Residence in Particular Federal District. — The Act of 1887- 
1888 provides that an action between citizens of different states 
originally commenced in a federal Circuit Court "shall be brought 
only in the district of the residence of either the plaintiff or the 
defendant." In the next section of the act the jurisdiction of 
the federal court by removal is limited to suits of which original 
jurisdiction is given to it by the preceding section. It is now 
well settled that this limitation applies only to the general grant 
of jurisdiction at the beginning of the preceding section, and not 
to the special regulations as to the district in which an action 
may be brought, and that a cause may be removed though neither 
party resides in the federal district in which the suit is brought, 
if the other necessary conditions exist.^ By filing the petition 

1. Woodruff V. New York, etc., R. Pagenstecher, 44 Fed. Rep. 705; Uhle 
Co., 59 Conn. 63, an application by v. Burnham, 42 Fed. Rep. i; PurceU 
railroad commissioners to compel a v. British Land, etc., Co., 42 Fed. Rep. 
railroad company to move its tracks in 465; Burck v. Taylor, 39 Fed. Rep. 
obedience to an order of the board 581; Kansas City, etc., R. Co. r. Inter- 
made under authority of a legislative state Lumber Co., 37 Fed. Rep. 3; 
act for the abolition of a grade cross- Sheffield First Nat. Bank v. Merchants' 
ing, decided on the ground that the Bank, 37 Fed. Rep. 657; Swayne v, 
federal court cannot take cognizance Boylston Ins. Co., 35 Fed. Rep. i; 
of questions relating to the exercise of Short v, Chicago, etc., R. Co., 34 Fed. 
the police power of a state. BmI com- Rep. 225, 33 Fed. Rep. 114; Tiffany v. 
pare People r. Rock Island, etc., R. Wilce, 34 Fed. Rep. 230; St. Louis, 
Co., 71 Fed. Rep. 757. etc., R. Co. v. Terre Haute, etc., R. Co., 

8. Scott V. Neely, 140 U. S. 106. Sec 33 Fed. Rep. 385; Loomis v. New 

also article Creditors* Bills, vol. 5, York, etc.. Gas Coal Co., 33 Fed. Rep. 

p. 465 et seq. 353; Pitkin County Min. Co. v. Marlc- 

8. Cates v. Allen, 149 U. S. 451 ell, 33 Fed. Rep. 387; Gavin v. Vance, 

Parkersburg First Nat. Bank v. Prager, 33 Fed. Rep. 84; Fales v, Chicago. 

91 Fed. Rep. 689. etc., R. Co., 32 Fed. Rep. 673; Craven 

4. Mexican Nat. R. Co. v. Davidson, v. Turner, 82 Me. 383; Koshland v, 

157 U. S. 208; McCormlck Harvesting National Ins. Co.. 31 Oregon 205. 
Mach. Co. V. Walthers, 134 U. S. 41; Salt Begun by Attaohment. — InAmeri- 

Cates V, Allen, 149 U. S. 460; Monroe can Finance Co. v. Bostwick, 151 

V. Williamson, 81 Fed. Rep. 988; Mass. 19, a citizen of Pennsylvania 

Stalker v, Pullman's Palace-Car Co., sued a citizen of New York in the Su- 

81 Fed. Rep. 989: Duncan s^. Associ- perior Court of Massachusetts, and at- 

ated Press, 81 Fed. Rep. 417; Long v. tached property of the defendant, but 

Long, 73 Fed. Rep. 369; Hoover, etc , made no personal service upon him. 

Co. V, Columbia Straw- Paper Co., 68 After notice the defendant appeared in 

Fed. Rep. 945; Frisbie v, Chesapeake, the action, and, before the time when 

etc., R. Co., 57 Fed. Rep. i; Sherwood he was required to file an answer in the 

V. Newport News, etc., Co., 55 Fed. Superior fcourt, duly removed it to 

Rep. i; Richmond v. Brookings, 48 the Supreme Judicial Court, under the 

Fed. Rep. 241 ; Crocker Nat. Bank z/. local statute, and in that court filed a 

180 Volume XVIII. 



REMOVAL OF CA USES, to Fedml Oomrlt. 

• 

and bond for removal the defendant waives the right to challenge 
the jurisdiction of the federal court on the ground that the action 
was not commenced in the proper district.^ 

itttti By i«A Agtinvt AUvttB. — It is doubtful if the provision as 
to the district in which an original suit shall be brought applies to 
actions between citieens of a state and foreign states, citizens, 
or subjects,* but even if it does, the removal of such an action 
does not depend upon the condition.' 

10. Suits and Proseoations Againit PedBnl XeTena^ Officers — 
(L Authority for Removal. — An Act of Congress provides 
for removal to the federal court of certain suits and prosecu- 
tions in state courts against federal revenue officers or persons 
acting under their authority,* The constitutionality of the act 

petttioo to remove the cause to the against any person holding property or 

federal court, on the ground of diverse estate by title derived from any such 

citiaenship. It was held thai the tanse officer, and afifects the validity of any 

wts properly removed. sach revenue law; * * * the said 

1. Creagh v. Equitable L« Assur. suit or prosecution may, at any time 
Sx., 83 Fed. Rep, 850 [^n'/iK^ Oracle v, before the trial or final hearing thereof. 
Palmer, 8 Wheat. (U. S.) 699; Pollard be removed for trial into the circuit 
z>. Dvight, 4 Cranch (U. S.)42i; Barry court next to be hoiden in the district 
r. Foyles, i Pet. (U. S.) 311; Toland v. where the same is pending, upon the 
Sprague, 12 Pet. (U. S.) 300; Ex p. petition of sach defendant to said cir- 
SchoUsobetger, 96 U. S. 369; Fiizger- cuit court, and in the following man- 
aid, etc., Constr. Co. v. Fitzgerald, 137 ner: Said petition shall set forth the 
U. S. 98; St. Louis, etc., R, Co. r;. Mc> nature of the suit or prosecution, and 
Bride, 141 U. S. 127; Texas, etc., R, be verified by affdavit; and, together 
Co. V. Cox, 145 U. S. 593* Southern with a certificate signed by an attorney 
Pac. Co. V, Denton. 146 U. S. 202; or counselor at law of some court of 
Texas, etc., R. Co. zr. Saunders, 151 record of the state where such suit or 
U. S. 105; Central Trust Co. p. Mc- prosecution is commenced, or of the 
George, 151 U, S. 129; Mexican Nat, United States, stating that* as counsel 
R. Co. V. Davidson. 157 U. S. 208; In^ for the petitioner, he has examined the 
tenor Constr.^ etc., Co. v, Gibaey, 160 proceedings against him, and carefully 
U. S. sao]. inquired into all the matters set forth 

1 Sherwood v. Newport News, etc., in the petition, and that he believes 

Co., 55 Fed. Rep. 3. them to be true, shall be presented to 

<. Uhle V. Burnham,42 Fed. Rep. i; the said circuit court, if in session, or 

Shervrood v, Newport News, etc., Co., if it be not, to the clerk thereof at his 

5S Fed. Rep. i. See also Purcell v. ofiice, and shall be filed in said office. 

British Land, etc.. Co., 42 Fed. Rep« The cause shall thereupon be entered 

4^: Cooley v. McArthur, 35 Fed, Rep. on the docket of the circuit court, and 

372* shall prtkceed as a cause originally 

4. Rev, Stat. U. S., § 643, which pro commenced in that court; but ail bail 

vides as follows: "When any civil suit and other security given upon such suit 

orcrimiocd prosecution is commenced or prosecution shall continue in like 

in any court of a state against any offi- force and effect as if the same had pro- 

cer appointed under or acting by au> ceeded to final judgment and execution 

ilrotityofany re venue law of the United in the staie court. When the suit is 

Stores now or hereafter enacted, or commenced in the state court by sum- 

against any person acting under or by mons, subpoena, petition, or another 

aaihority of any Such officer, on ac- process except capias, the clerk of the 

count of any act done under color of circuit court shall issue a writ of cert io- 

his office ornf any such law, or on ac- rari to the state court, requiring it 10 

co.tnt of any right, title, or authority send to the circuit court the record and 

claimed by such officer or other person proceedings in the cause. When it is 

under any such law; or is commenced commenced by capias, or by any other 

181 Volume XVIII. 



From BUM REMOVAL OF CA USES, to Federal Oonrta. 

has been expressly affirmed.^ 
b. What Cases Are Removable. — It is said that the statute 

is highly remedial and should be construed liberally.' 

The following cases were held removable : Prosecutions against 
United States marshals or their deputies or assistants for acts 
done by them in the service of warrants issued for the arrest of 
persons accused of violation of the United States revenue laws;* 
a summary proceeding by a landlord to recover possession of 
premises against the lessee and undertenants, one of whom was a 
collector of internal revenue and another a United States store- 
keeper; '^ an attachment rule against an internal-revenue collector 
for contempt in obstructing the state sheriff in the levying of an 
execution upon whiskey in a bonded warehouse ; * a suit by a 
carrier against a collector of customs to recover money paid to 
the defendant by the consignee of goods delivered to him by the 

similar form of proceeding by which a U. S. Stat, at L. 433, c. 866. Similar 

personal arrest is ordered, he shall is- provisions are to be found in the Act of 

sue a writ of habeas corpus cum causa^ July 13, 1886, 14 U. S. Stat, at L. 171, 

a duplicate of which shall be delivered c. 184, § 67, and in the Act of March 2, 

to the clerk of the state court, or left at 1833, 4 U. S. Stat, at L. 633, c. B7. § 3. 

his office, by the marshal of the district, the latter of which acts was called in 

or his deputy, or by some person duly the political dialect of the time the 

authorized thereto; and thereupon it Force Act. 

shall be the duty of the state court to What Are Bevenue Laws. — " Any law 

stay all further proceedings in the which provides for the assessment and 

cause, and the suit or prosecution, collection of a tax to defray the ex- 

upon delivery of such process, or leav- penses of the government is a revenue 

ing the same as aforesaid, shall beheld law.'* Peyton v. Bliss, Woolw. (U. S.) 

to be removed to the circuit court, and 173. 

any further proceedings, trial, or judg- The post-office laws are revenue 

ment therein in the state court shall be laws within the meaning of the act. 

void. And if the defendant in the suit Warner v. Fowler, 4 Blatchf. (U. S.) 

or prosecution be in actual custody or 311. 

mesne process therein, it shall be the 1. Tennessee r. Davis, 100 U. S. 257; 

duty of the marshal, by virtue of the Davis v. South Carolina, 107 U. S. 597; 

writ of habeas corpus cum causa, to Findley v. Satterfield, 3 Woods (U. S.) 

take ihe body of the defendant into his 504; State v. Hoskins, 77 N. Car. 530. 

custody, to be dealt with in the cause Compare State v. Davis, 12 S. Car. 

according to law and the order of the 528. 

circuit court, or, in vacation, of any 8. State r. Sullivan, 50 Fed. Rep. 

judge thereof; and if, upon the re- 594. 

moval of such suit or prosecution, it is 8. Davis v. South Carolina, 107 U. S. 
made to appear to the circuit court that 597. In that case a deputy collector 
no copy of the record and proceedings of internal revenue indicted for homi- 
therein in the state court can be ob- ctde alleged by hioi to have been com- 
tained, the circuit court may allow and mitted in self-defense while engaged in 
require the plaintiff to proceed dc navo^ the discharge of the duties of his office 
and to file a declaration of his cause of procured a removal of the prosecution, 
action, and the parlies may thereupon A prosecution against a deputy mar- 
proceed as in actions originally brought shal for homicide committed in arrest- 
in said circuit court. On failure of the ing a violator of the internal revenue 
plaintiff so to proceed, judgment of laws is removable. Carico v. Wilmore, 
ff^/i^r<7j/>^»//i#r may be rendered against 51 Fed. Rep. 196. 
him, with costs for the defendant." 4. Gallatin v. Sherman, 77 Fed. Rep. 

The foregoing section was expressly 337. 

continued in force by the Act of 1887- 6. McCullough v. Large, 20 Fed. 

1888, 24 U. S. Stat, at L. 552, c. 373; 25 Rep. 309. 

182 Volume XVIIL 



Xron Btate REMOVAL OF CA USES. to Federal Conrtt, 

defendant for the carrier's charges, the defendant falling to notify 
the carrier as the law required ; * a suit against a collector of 
customs for slanderous words uttered by the defendant in connec- 
tion with a seizure of goods by him for a violation of the revenue 
laws;* an action against a postmaster for alleged wrongful refusal 
to deliver a letter; * an action against an internal-revenue collector 
to recover back taxes illegally exacted and collected by him ; ^ 
and a suit brought against a collector of customs by an informer 
for the proceeds of goods condemned as forfeited for a breach of 
the revenue laws.* A United States collector of customs served 
as garnishee in foreign attachment for goods of the defendant 
held for duties may remove the suit.* 

The following cases have been held not removable : An action 
against a United States commissioner to recover money illegally 
exacted by him as costs and fees in a criminal proceeding before 
him; '^ a suit against an assistant treasurer of the United States 
to recover the value of United States bonds received by him from 
the plaintiff and retained under instructions from the treasury 
department on the ground that they were unlawfully put into 
circulation ; ® and an indictment for selling liquor in violation of 
a state statute though the defendant held a license under the 
internal-revenue law.® 

r. Amount in Controversy. — The jurisdiction of the 
federal court by removal of the cases considered in the two fore- 
going paragraphs does not depend upon the amount in con- 
troversy. *® 

d. From What Court Removable. — A prosecution is not 
only removable when commenced in a court of record, but it may 
be removed from a court held by a justice of the peace where the 
party is to be tried before him and the offense is not indictable.** 

e. Time for Application for Removal. ■— The statute pro- 
vides for removal of a suit or prosecution ** commenced." ** 
Where the alleged crime is one which must be prosecuted by 
indictment the prosecution is not commenced until indictment 
found.** The statute further provides for removal ** at any time 

1. Cleveland, etc., R. Co. v. Mc- 7. Benchley v. Gilbert, 8 Blatchf. (U. 

Clung, 119 U. S. 454. S.) 147. 

8. Buttner v. Miller, i Woods (U. S.) 8. Victor v. Cisco, 5 Blatchf. (U. S.) 

620. 128. 

8. Warner v. Fowler, 4 Blatchf. (U. 9. Com. v. Casey, 12 Allen (Mass.) 

S.)3ii. 214; State v. Elder, 54 Me, 381. 

1 Venable v. Richards, 105 U. S. 10. See infra, I. 18. d. In What Cases 

636; Philadelphia v. Collector, 5 Wall. Jurisdictional, 

(U. S.) 720. See also Onondaga Salt 11. Com. v. Bingham, 88 Fed. Rep. 

Co. V. Wilkinson. 8 Blatchf. (U. S.) 30; 561, distinguishing Virginia v. Paul, 148 

Field V, Schell, 4 Blatchf. (U. S.) 436; U. S. 107. See also Georgia v. Port, 3 

Coggill V, Lawrence, 2 Blatchf. (U. S.) Fed. Rep. 117. 

304. 13. See the statute quoted supra^ p. 

5. Van Zandt v. Maxwell, 2 Blatchf. 181, note 4. 

(IJ. S.)42i. 13. Virginia v. Paul, 148 U. S. 107; 

6. Fischer v, Daudistal, 9 Fed. Rep. Georgia v. O'Grady, 3 Woods (U. S.) 
145. 496; Com. z/. Artman, 3 Grant Cas. 

183 Volume XVIII. 



AMI mtu REMOVAL OP CA USES. to Fedina Cmvu, 

before the trial or final hearing'' of the suit or prosecution.^ 
A civil case cannot be removed after trial and final judgment and 
appeal to the court to which the application for removal is made.* 

/. How Removal Is Effected — p^iatioa. — The statute pro- 
vides for the filing of a verified petition for removal in the federal 
Circuit Court and prescribes the contents thereof.' The petition 
should aver positively that the suit or prosecution is for acts done 
in the performance of official duty.*^ 

Otniwirl And Eabtu C«nMui. — The removal of the case takes place 
without any order of the federal court as soon as the state court 
by the service upon it or upon its clerk of the appropriate process, 
whether certiorari or habeas corpus cum causa, has notice of the 
filing of the petition in the federal court. But it is only after 
such formal notice has been given that the jurisdiction is trans* 
ferred to the federal court.* 

g. Trial in Federal Court. — On the trial in the federal 
court the parties are entitled to the number of challenges of 
jurors allowed by the law of the United States and not the num* 
ber allowed by the state law.* Decisions of the Supreme Court 
of the state interpreting the statute defining the offense will be 
followed in the federal court. ^ 

11. Denial of Civil Eights — ^. Authority for Removal. — 
An Act of Congress provides for removal to the federal Circuit 
Courts of certain civil suits or criminal prosecutions wherein the 
defendant is denied the equal civil rights secured by the laws 
of the United States.® The act has been declared to be 

(Pa,) 436, 5 Phila. ^Pa.) 304, 20 Leg. Int. of ceriiorari or habeas corpus see supra^ 

(Pa.) 364. Contra in some of the earlier p. 181, note 4 

casest holding that it «ras sufficiently Certiorari ia CDriiiiaBl Oase. -- When a 

commenced by arrest on a warrant, revenue officer ciiminally prosecuted 

North Carolina v. Kirkpatrick, 4a in the state court has been released on 

Fed. Rep. 689; Georgia v. Bolton. 11 bail and a writ of habeas corpus is not 

Fed. Rep. 217; Georgia v. Port, 3 Fed. applied for in the removal petition a 

Rep. 117, certiorari may properly be issued. 

1. See the statute quoted supra, p. State v. Sullivan, 50 Fed. Rep. 593. 

181, note 4, and Northwestern Distilling Prooeedingi in tiie State Court Snbse- 

Co. V. Corse, 4 Biss. (U. S.) 514. qnent to BoaoTtl are c^ram nonjudut 

8. Brice v, Somers, i Flipp. (U. S.) and void. McCullough v. Large, 20 

574. Fed. Rep. 309; Davis v. South Caro- 

8. See the statute quoted supra, p. lina, 107 U, S. 597. See also State v. 

181, note 4. Circuit Judge, 33 Wis. 127. 

A Frecodentof a Petition may be found 6. Georgia v. O'Grady, 3 Woods (U. 

in Tennessee v, Davis, 100 U. S. 259. S.) 496. 

See also Com. v, Bingham, 88 Fea. 7. North Cacolina v. Gosnell, 74 Fed. 

Rep. 561. Rep. 734. 

4. Illinois v, Fletcher, 22 Fed. Rep. 8. Rev. Sut. U. S., §§ 641, 642* 

776. See alsof jr/. Anderson, 3 Woods which provides as follows: 

(U. S.) 124. ** § 641. When any civil suit or crimi- 

The jurisdiction of the federal court nal prosecution is commenced in any 

depends upon the verified statements state court, for any cause whatsoever, 

in the petition for removal. Virginia against any person who is denied or 

r. Paul, 148 U. S. 122. cannot enforce in the judicial tribunals 

B. Virginia v. Paul, 148 U. S. 115. of the state, or in the part of the state 

For the provisions of the act in respect where such suit or prosecution is pend- 

184 Volume XVIII. 



hm IM REMOVAL OF CA USES. to Fedena Oouti. 

constitutional by the United States Supreme Court. ^ 

b. What Cases Are Removable. — The denial of civil 
rights to which the statute refers is primarily if not exclusively a 
denial of such rights, or an inability to enforce tiiem, resulting 
from the constitution or laws of the state.' The statute does 
not embrace a case in which a right is denied by judicial action 
during a trial, or in the sentence or in the mode of executing the 
sentence,' nor authorize the removal of a criminal prosecution on 

iog, aay right secured to him by any may order a nonsuit, and dismiss the 
law providiae for the equal civil rights case at the costs of the plaintiff, and 
of citiiens of the United States, or of i^uch dismissal shall be a bar to any 
all persons wiihtn the jurisdiction of further suit touching the matter in 
the United States, or against any offi- controversy. But if, without fiuch re* 
cer, civil or military, or other person, fusal or neglect of said clerk to furnish 
for any arrest or imprisonment or other such copies and proof thereof, the peti- 
trespasses or wrongs, made or com- tioner for removal fails to file copies in 
milted by virtue of or under color of *the circuit court as herein provided, a 
authority derived from any law provid- certificate under the seal of the circuit 
ing for equal rights as aforesaid, or for court, stating such failure) shall be 
refusing to do any act on the ground given, and upon the production thereof 
that it would l>e inconsistent with such in said state court, the cause shall pro- 
law, such suit or prosecution may, ceed therein as if no petition for a re- 
apon the petition of such defendant, moval had been filed, 
filed in said state court at any time be- '* g 642. When all the acts necessary 
fore the trial or final hearing of the for the removal of any suit or prosecu- 
cause, stating the facts and verified tlon, as provided In the preceding see- 
by oaih, be removed, for trial, into the tion, have been performed, and the de- 
next circuit court to be held in the dis- fendant petitioning for such removal is 
trict where it is pending. Upon the in actual custody on process issued by 
filing of such petition all further pro- said stale court, it shall be the duty of 
ceedings in the state courts shall the clerk of said circuit court to issue 
cease, and shall not be resumed except a writ of habeas corpus cum cauM, and 
as hereinafter provided. But all bail of the marshal, by virtue of said writ, 
and other security given In such suit to take the body of the defendant into 
or prosecution shall continue in like his custody, to be dealt with in said cir- 
force and effect as if the same had pro- cult court according to law and the 
ceeded to final judgment and execution orders of said court, or, in vacation, of 
in the state court. It shall be the duty any judge thereof* and the marshal 
of the clerk of the state court to furnish shall file with or deliver to the clerk of 
sach defendant, petitioning for a re- said state court a duplicate copy of said 
ffioval, copies of said process against writ." 

him, and of all pleading, depositions, 1. Strauder v. West Virginia, lOo V. 

tesiimony, and other proceedings in S. 303. See also £x f, Virginia, 100 

thi case. If such copies are filed by U. S. 345. 

Slid petitioner in the circuit court on 8. Murray v. Louisiana, 163 U. S. 

the first day of its session, the cause 106; Dubuclet v. Louisiana, 103 U. S. 

Bhall proceed therein in the same man- 550. 

ner as if it had been brought there by Zzclntion of Hegroes fnm. Ituiei. — 

original process; and if the said clerk The act applies to a criminal prosecn- 

refQSJs or neglects to furnish such tion under a statute which discrimi- 

copies, the petitioner may thereupon nates against negroes in the selection 

docket the case in the circuit court, and of juries. Strauder v. West Virginia, 

the said court shall then have jnrisdic- 100 U. S. 303; Dixon v. State, 74 Miss. 

tion therein and may, upon proof of 271, holding, however, that the Missis- 

soch refusal or neglect of said clerk, sipfii statute did not so discriminate. 

and upon reasonable notice to the 8. Murray v. Louisiana, 163 U. S. 

plaintiff, require the plaintiff to file a 105; Virginia v. Rives. 100 0. S. 313. 

declaration, petition, or complaint in See also Stommel v. Timbrel, 84 lowa 

we cause; and, in case of his default, 336. 

185 Volume XVIII. 



VhunSUte REMOVAL OF CAUSES. to Fedoral Conrti. 

the ground of race or other prejudice against the defendant,^ or 
a civil suit merely because the state is plaintiff and has the privi- 
lege, not accorded to citizens, of suing and attaching property 
without bond or affidavit.* 

c. How Removal Is Effected. — The statute provides for 
the filing of a verified petition in the state court before the trial 
or final hearing of the cause ' and for a writ of habeas corpus 
cum causa when the defendant is in custody.* The state court 
has a right to determine whether the application for removal 
shows a removable case, subject, however, to the superior right 
of the federal court to assert its jurisdiction if it shall deem the 
case removable.* 

12. Parties Claiming Land under Grants from Different States. — It 
is provided by the Act of 1887-1888 that suits between citizens 
of the same state involving the title to land claimed under grants 
from different states may be removed by either plaintiff or defend- 
ant irrespective of residence.* 

Bxolaiion of Vegroet from Jury. — A ** If in any action commenced in a 
criminal prosecution cannot be re- state court the title of land be con- 
moved upon an allegation that jury cerned, and the parties are citizens of 
commissioners or other subordinate the same state, and the matter in dis- 
officers have, without autliority derived pule exceed the sum or value of two 
from the constitution and laws of the thousand dollars, exclusive of interest 
state, excluded colored citizens from and costs, the sum or value being made 
the jury because of their race. Neal v, to appear, one or more of the plaintiffs 
Delaware, 103 U. S. 370; Gibson V. Mis- or defendants, before the trial, may 
sissippi, 162 U. S. 565; Bush v. Ken- state to the court, and make affidavit if 
tacky, 107 U.S. no; Virginia r. Rives, the court require it, that he or fhey 
looU. S. 313; Murray 9. Louisiana, 163 claim and shall rely upon a right or 
U. S. 105; Cooper v. State, 64 Md. 40; title to the land under a grant from a 
Dixon V, State, 74 Miss. 271. See also state, and produce the original grant. 
State r. Murray, 47 La. Ann. 1424. or an exemplification of it, except 

1. California v. Chue Fan, 42 Fed. where the loss of public records shall 
Rep. 865; ^jr/. Wells, 3 Woods (U. S.) put it out of his or their power, and 
128; Texas v. Gaines, 2 Woods (U. S.) shall move that any one or more of 
342; i^jT ^. State, 71 Ala. 363; Fiizger- the adverse party inform the court 
aid V. AUman, 82 N. Car. 492; O'Kclly whether he or they claim a right or 
V, Richmond, etc., R. Co., 89 N. Car. title to the land under a grant from 
58; State V. Smalls, 11 S. Car. 262. some other stale, the party or parties 
See also Chappell v. Real-Estate Pool- so required shall give such informa- 
ing Co., (Md. 1899) 42 All. Rep. 936; tion, or otherwise not be allowed fo 
Thomas v. State, 58 Ala. 365. plead such grant or give* it in evidence 

2. Alabama v. Wolffe, 18 Fed. Rep. upon the trial; and if he or they inform 
836. that he or they do claim under such 

8..After Yerdiot and Sentence it is 100 grant, any one or more of the party 

late to file a petition for removal, moving for such information may 

Bush V. Com., 80 Ky. 244. then, on petition and bond, as herein- 

A Precedent of a Verified Petition may before mentioned in this act, remove 

be found in Neal r. Delaware, 103 U. the cause for trial to the circuit court 

S. 371. of the United Stales next to be holden 

4. See the provisions of Rev. Stal. in such district; and any one of either 
U. S., ^§ 641, 642, quoted supra, p. 184. party removing the cause shall not 
note 8. be allowed to plead or give evidence 

5. Ex p. Wells, 3 Woods (U. S.) 128. of any other title than that by him or 

6. 24 U. S. Stat, at L. 552, c. 373; 25 them stated as aforesaid as the ground 
U. S. Stat, at L. 433, c. 866. The pro- of his or their claim." 

vision is as follows: No cases appear to have arisen 

18G Volume XVIIL 



Irwk 8Ut0 REMOVAL OF CA USES. to Federal Conrtt. 

13. Suits for Acts Done During: the Bebellion. — An Act of Congress 
of March 3, 1863,^ amended by Act of May 11, 1866,* provided 
for the removal of civil suits or criminal prosecutions against civil 
or military officers for acts done during the Rebellion by order of 
the President, secretary of war, or any military officer.* These 
provisions, though not expressly repealed, have expired by lapse 
of time. 

14. Action by Alien Against Federal Civil Officer. — See supra^ 
p. 160. 

15. Citizenship as an Element of Federal Jurisdiction — a. In Gen- 
eral. — A citizen, within the meaning of the act conferring juris- 
diction on the courts of the United States, means a citizen of the 
United States and of a particular state thereof.* 

*. Residence in Territory or District of Columbia. — 

A resident of a territory or of the District of Columbia is not a 
citizen of a state, ^ and a suit in which he is a necessary party, 
either plaintiff or defendant, cannot be removed to a federal 
court on the sole ground that it is a controversy between citizens 
of different states.* 

under the act. A similar but not the ward, 3 Grant Cas. (Pa.) 418; Com. v, 

same provision was made by the Judi- Artman, 3 Grant Cas. (Pa.) 436; Jones 

ciary Act of 1789. i U. S. Stat, at L. v. Davenport, 7 Coldw.' (Tenn.) 145; 

79, § 12. For a case removed under Martin v. Snowden, 18 Gratt. (Va.) 100. 

that act, see Shepherd v. Young, i T. For similar acts passed during and 

B. Mon. (Ky.) 203. after the war of 1812 with Great Britain, 

1. 12 U. S. Stat, at L. 754, c. 80. see Wetherbce v. Johnson, 14 Mass. 

8. 14 U. S. Stat, at L. 46, c. 80. 412; Galpin v. Critchlow, 112 Mass. 

3. For cases arising under the acts, 340, and the statutes there cited, 

see Flanders r. Tweed. 15 Wall. (U. S.) 4. Picquet v. Swan, 5 Mason (U. S.) 

450; Nashville v. Cooper, 6 Wall. (U. 35. See also the cases cited in the fol- 

S.) 247; Justices o. Murray, 9 Wall, lowing note; and as to what consti- 

(U. S.) 274; Bigelow cr. Forrest, 9 Wall, tutes citizenship, see Am. and Eng. 

(U. S.) 339; McKee t/. Rains, 10 Encyc. of Law (2d ed.), title Ci /xVffj^i^, 

Wall. (U. S.) 22; Woodson v. Fleet, vol. 6, p. 14, and title United States 

2 Abb. (U. S.) 15; Lamar z^. Dana. 10 Courts. 

Blatchf. (U. S.) 34; Murray v, Patrie, 5. Cameron u. Hodges, 127 U. S. 

5 Blatchf. (U. S.) 343; Clark v. Dick, i 325; New Orleans v. Winter, i Wheat. 

Dill. (U. S.) 8; McCormick v. Hum- (U.S.) 91; Hepburn v. Ellzey, 2 Cranch 

pbrey, 27 Ind. 144; Skeen v. Hunting- (U. S.) 445: Wescott z'. Fairfield Tp., 

ion, 25 Ind. 510; Edwards v. Ward, Pet. (C. C.) 45; Vasse v. Mifflin, 4 

2 Bush (Ky.) 606; Eifort v. Bevins. i Wash. (U. S.) 519; Picquet v. Swan, 5 

Bush (Ky.) 460; Short v. Wilson, i Mason (U. S.) 54; Barney v. Balti- 

Bush (Ky.) 350; MitcheU v. Dix, (N. more, 6 Wall. (U. S.) 287. 

Y. Super. Ct. Spec. T.) 42 How. Pr. 6. Mansfield, etc., R. Co. v. Swan, 

M. Y.) 475; Florance v. Butler, (N. Y. iii U. S. 381: Snow v. Smith, 88 Fed. 

Super. Ct. Spec. T.) 9 Abb. Pr. N. S. Rep. C58; Seddon v. Virginia, etc., 

TN. Y.) 63; Patrie v, Murray, 43 Barb. Steel, etc., Co., 36 Fed. Rep. 8; Glover 

(N. Y.) 323: People v. Murray, (N. Y. 7/. Shepperd, 15 Fed. Rep. 836; Stras- 

Gcn. Sess.) 5 Park Crim. (N. Y.) 577; burger v, Beecher, 44 Fed. Rep. 213; 

Benjamin v. Murray, (Supm. Ct. Gen. Chapman v. Chapman, 28 Fed. Rep. 

T.) 28 How. Pr. (N. Y.) 193; Siebrecht 2; Cissel v, McDonald, 16 Blalchf. (U. 

V, Butler, (Supm. Ct. Spec. T.) 2 Abb. S.) 150, 57 How. Pr. (N. Y.) 175; Dah- 

Pr. N. S. (N. Y.) 361, note; Bell v, lonega Co. r. Frank W. Hall Merchan- 

Dix, 49 N. Y. 232; Jones v. Seward, 41 disc Co., 88 Ga. 839. 

Barb. (N. Y.) 269; State v. Fairfield C. " If plaintiff or defendant be a citi- 

Pl., 15 Ohio St. 377; Hodgson v. Mill- zen of a territory or of ihe District of 

187 Volume XVIIL 



Rm itot REMOVAL OF CA USES. to Fedami Conrn. 

r. CiTtZENSHip OF Corporations — tn qm^mi — A corporation 

has the same privilege of removing a cause to the federal court 
as a natural person; ^ and it is now familiar law that where the 
jurisdiction depends upon diverse citizenship a corporation is 
deemed to be a cititen of the state where it was incorporated, or, 
to speak with technical precision, it is conclusively presumed that 
the corporators are citizens of the state creating the corporation." 
But a corporation, for Instance a railroad corporation, created by 
the laws of one state, may carry on business in another, either by 
virtue of being created a corporation by the laws of the latter 
state,* or by virtue of a license, permission, or authority granted 
by the laws of the latter state to act in that state under' the char- 
ter from the former state;** In the first alternative it is deemed 
a citizen of both states and cannot remove on the ground of 
diverse citizenship a suit brought against it by a citizen of the 
state in which it was last incorporated.* In the second alterna- 
tive it may remove such a suit, because it is a citizen of a differ- 
ent state from that of the plain tiff.* 

Columbia, jurisdiction will not aUach.** Co. v, Cary, 28 Ohio St. 208; Erie R. 

HollingE worth v. Southern R. Co., 66 Co. v. Stringer, 32 Ohio St. 466; Kosfa- 

Fed. Rep. 355. lahd v. National Ins. Co., 31 Oreffon 

1. Chicago, etc., R. Co. v, Whitlon, 205. 

13 Wall. (U. S.) 270; Home Ins. Co. v^ A Kuaicipal Corpoimtioii is for juris- 

Morse, 20 Wall. (U. S.) 445; Farmers* dktconal purposes aciiicen of the stale 

L. & T. Co. V. Maquillan. 3 Dill. (U» in which it exists. Ysieta v. Canda, 

S.) 379; Fox V. American Casualty 67 Fed. Rep* 6: Cowles v. Mercer 

Ins., c!Cm Co.» 2 P&. Dipt. 158; Flor- County, 7 Wall. (U. S.) lai. 

ence Sewing Mach. Co. e/» Grover, etc., S.Indianapolis, etc., R. Co. v. 

Sewing Mach. Co«« no Mass. 70; and Vftnce, 96 U. S. 450; Memphis, etc., R. 

the cases cited in the following notes. Co. v. Alabama, 107 U. S. 561; Clark 

3. Ohio, etc., R. Co. v. Wheeler, i v. Barnard, 108 U. S. 436; Railroad 

Black <U. SO 286; Louisville, etc., R. Commission Cases, ti6 U. S. 307; Gra- 

Co. V. Letson, b How. (U. S.) 497; Na« ham v. Boston, etc., R. Co., 118 U. S. 

tional Steamship Co» c. Tugman, 106 161. 

U. S. 118; Chicago, etc., R. Co. t/. 4. Baltimore, etc., R. Co. v. Harris, 

Whiiton, 13 Wall. (U. S.) 270; Nashua, 12 Wall. (U. S.)65; Baltimore, etc., R. 

e«c., R» Corp. V. Boston, etc«, R. Corp., Co. ». KoonU, 104 U. S. 5; Pennsyl- 

136 U. S. 356; Mississippi, etc.. Boom vania R. Co. v. St. Louis, etc., R» Co., 

Co. V. Patterson, 98 U. S. 403; Holl- 118 U. S. 290; Goodictt v. Louisville, 

ings worth v, Souihern R. Co., 86 etc., R. Co., 122 U. S. 391; Marye r. 

Fed. Rep. 353; Pacific R. Co. v, Baltimore, etc., R. Co., 127 U. S. 117% 

Missouri Pac. R. Co., 23 Fed. Rep. 5. Memphis, etc., R. Co. 0. Ala- 

565: Zatnbrino v. Gftlveston, etc»» bama, 107 U. S. 581; Home z^. Boston, 

R. Cd., 38 Fed. Rep. 451 ; Ysleia v. etc., R. Co., 62 N. H. 454, 18 Fed. Rep. 

Canda, 67 Fed. Rep. 6; HAtch r. Chi- 50*. Allegheny County v. Cleveland, 

cago, etc., R. Co., 6 Blatchf. (U. S.) etc., R. Co.> 51 Pa. St. 228; Mathis t'. 

los; Williams v. Missouri, etc., R. Co., Southern R. Co., 53 S. Car* 246. Com- 

3 DilU (U. S.) 267; BllVen v. New Eng- pare Nashua, etc., R. Corp. «/. BostoA, 

land Screw Co., 3 Blatchf, (U. S,) iii; etc., R. Corp., 136 U. S. 356. 

Atlas Mut. Ins. Co. v. Byrus, 45 Ind. 6. Martin z\ Baltimore, etc., R. Co., 

133; Western Union Tel. Co. v, Dick- 151 U. S. 673; Baltimore, etc., R. Co. 

in6on,40 Ind. 444; Rosenfielde/. Adams v, KOontt, 104 U. S. 5; Hollingsworth 

Express Co., St iJa. Ann. 233; Adams v. Southern R. Co.. 66 Fed. Rep. 353; 

Express Co. v. Trego, 35 Md. 47; Gull Markwood v. Southern R. Co., 65 Fed* 

River Lumber Co* v. School Eh'st. No. Rep. 817; Chapman v. Alabama, etc., 

39, I N* Dak. 408; Baltimore, etc«, R« R. Co., 59 Fed. Rep. 370; Oona v. Chi- 

188 Volume XVIII. 



Wim Btito REMOVAL OF CA USES. to Fedtral CMrta. 

CitiMiiBhlp of Vational Bank. — By the express provisions of the Act 
of 1887-1888, a national bank is to be deemed, for the purpose of 
jurisdiction, a citizen of the state in which it is located.^ 

d. Citizenship OF Representative Parties — (i) Executors 
and Administrators, — Federal jurisdiction, when it is based on 
the citizenship of the parties, depends upon the citizenship of 
the parties to the record, and not of those whom they may repre- 
sent,' and in a suit by or against an executor or administrator his 
personal citizenship controls,' not that of the decedent * or the 
next of kin.^ Nor is it material in what state his letters testa^ 
mentary or of administration were granted.* 

(2) Trustees and Receivers — Tnisteoi. — As a general rule, the 
citizenship of a trustee suing or being sued in his representative 
capacity controls, and not that of his cestui que trust, '^ 

A Beoiiyer is a trustee, and where a removal is sought on the 
ground of diverse citizenship, his personal citizenship is regarded, 
and it is immaterial in what state he was appointed.* 

cago, etc., R. Co., 48 Fed. Rep. 177; Mead v. Walker, 15 Wis 499; Dunn v, 

Stephens v, St. Louis, etc., R. Co., 47 Waggoner, 3 Yerg. (Tenn.) 59. Com- 

Fed. Rep. 530; Callahan v. Louisville, pare Banigan v. Worcester, 30 Fed. 

etc., R. Co., II Fed. Rep. 536; County Rep. 393. 

Ct. V. Baltimore, etc., R. Co., 35 Fed. '* Where an action is brought by a 

Rep. i6z; Wilkinson v, Delaware, etc., trustee who is such in good faith, and 

R. Co., 22 Fed. Rep. 353: Copeland v, has power ro control the claim, the 

Memphis, etc., R. Co., 3 Woods (U. S.) citizenship of the persons benehcially 

657; Morton v. Mutual L. Ins. Co., 105 interested, but not parties to the rec- 

Mass. 141; Quimby v, Pennsylvania ord, is not considered on a question of 

Ins. Co.. 58 N. H. 494; Southern Pac. removal. If the trustee is a citizen of 

R. Co. V, Harrison, 73 Tex. 103. the same state of which the defendant 

1. 24 U. S. Stat, at L. 552, c. 343; 25 is, federal jurisdiction is excluded.*' 

U. S. Stat, at L. 433, c. 866. Vimont v. Chicago, etc., R. Co., 64 

8. Brisenden v. Chamberlain, 53 Iowa 517, citing Susquehanna, etc., R. 

Fed. Rep. 310. etc., Co. v. Blatchford, 11 Wall. (U. S.) 

S. Hess V, Reynolds, 113 U. S. 76; 176; Knapp r. Western Vermont R. 

Couke V. Seligman, 7 Fed. Rep. 263; Co., 20 Wall. (U. S.) 123. 
Bondurant v, Watson. 103 U. S. 286; CaiM Biitiiigiiiilied. — *' The cases of 

McElmurray v. Loomis, 31 Fed. Rep. Browne v. Strode, 5 Cranch (U. S.) 303; 

395; American Bible Soc. v. Price, no McNutt v. Bland, 2 How. (U. S.) 10; 

U. S. 61; Continental Ins. Co. v, and Williams i/. Ritchey, 3 Dill. (U. S.) 

Rboads, 119 U. S 237. 406, were all cases where the party 

4. Hess V. Reynolds, 113 U. S. 76; whose citizenship was held not to be 
Hill V. Henderson, 6 Smed. & M. decisive was only a formal party plain- 
(Miss.) 356. tiff. Distinguishing the first two of 

5. Miller v. Sunde, i N. Dak. 4. these cases from a case like the one at 

6. Wilson V. Smith, 66 Fed. Rep. 81, bar, the United States Supreme Court, 
holding that an executor who is sued in Susquehanna, etc., R., etc., Co. v, 
in the state where his leiters testa- Blatchford, 11 Wall. (U. S.) 172, said: 
mentary were granted, and by a citizen ' The nominal plaintiffs in those cases 
of that state, may remove the suit if he were not trustees, and held nothing for 
is a citizen and resident of another the use or benefit of the real parties in 
state; Miller v, Sunde, i N. Dak. i; interest. They could not, as is said in 
Geyer v. John Hancock Mut. L. Ins. McNutt v. Bland, 2 How. (U. S.) 10, 
Co., 50 N. H. 224. prevent the instifution or prosecution 

7. Watson v. Asbury Park, etc., St. of the actions, or exercise any control 
R. Co., 73 Fed. Rep. i; Geyer v. John over them.' ** Per Corliss, C. J., in 
Hancock Mut. L. Ins. Co., 50 N. H. Miller v. Sunde, i N. Dak. 4. 

224; Miller v, Sunde, i N. Dak. 4: 8. Moore v, Los Angeles Iron, etc., 

189 Volume XVIIL 



Fhmi BUto REMOVAL OF CA USES. to Federal Courts. 

(3) Guardian or Next Friend. — Where an infant ' or a mar- 
ried woman * sues or defends by a guardian or next friend, the 
federal jurisdiction depends upon the citizenship of the party 
whom the guardian or next friend represents.* 

e. Partnership or Joint-stock Company — Pwrtnership. — 

Citizenship cannot be predicated of a partnership eo nomine. 
Federal jurisdiction of suits by and against the partnership must 
depend upon the citizenship of the respective partners.* 

A Jdnt-itodc Company is not a citizen, and federal jurisdiction must 
depend upon the citizenship of the individual members.* 

/. Suit By or Against an Indian. — A suit by or against 

an unnaturalized Indian residing with his tribe in the United 
States is not removable unless it affirmatively appears on the 
face of the declaration or complaint that a federal question is 
necessarily involved.* 

16. OrouiLdB for BemoTal under Act of 1887-1888 — a. Diverse 
Citizenship of Parties — (i) The Statutory Provision. — The 
Act of 1 887-1 888 authorizes the removal of suits " in which there 
shall be a controversy between citizens of different states.'* '^ 

(2) Where a State Is a Party, — A state is not a citizen of any 
state ; hence a suit between a state and a citizen or corporation 
of another state cannot be removed to a federal court solely on 
the ground of the diverse citizenship of the parties,® if the state 

Co., 89 Fed. Rep. 73: Davies v. Lath- U. S. 482; Germania Ins. Co. r. Wis- 

rop, 12 Fed. Rep. 353, 854, 20 Blatchf. consin, 119 'U. S. 473; Stone v. South 

(U.S.) 397; Brisenden t'. Chamberlain, Carolina, 117 U. S.' 430; Ames v. Kan- 

53 Fed. Rep. 310. sas, iii U. S. 449; Hickman v. Mis- 

Thus a receiver of a railway com- souri, etc., R, Co., 97 Fed. Rep. 116; 

pany may remove a suit wherein he is Indiana v. Allesfhany Oil Co., 85 Fed. 

a defendant if he is a citizen and resi- Rep. 870: Indiana r. ToIIeston Club, 

dent of another state than that in 53 Fed. Rep. 18; State v. Columbus, 

which the suit is brought, though the etc., R. Co., 48 Fed. Rep. 628; Texas 

railway company is a citizen of the v. Day Land, etc., Co.. 49 Fed. Rep. 

latter state. Brisenden v. Chamber- 593; Ferguson v. Ross, 38 Fed. Rep. 

lain, 53 Fed. Rep. 307. 161 ; Alabama v, Wolffe, 18 Fed. 

1. Wool ridge v. McKenna, 8 Fed. Rep. 836; Grinnell v. Johnson, 28 Fed. 

Rep. 650. Compare In te McClean, 26 Rep. 2; Connecticut v, Adams, 6 Ohio 

Fed. Rep. 49. Cir. Dec. 46, 2 Ohio Dec. 119. See 

8. Ruckman v. Palisade Land Co., i also Texas v. Lewis. 12 Fed. Rep. i. 

Fed. Rep. 367. An Information in Chanoery filed by the 

8. See the two preceding notes. attorney-general in the name of the 

4. Adams v. May, 27 Fed. Rep. 908; state to protect funds created by a 
Conn V, Chicago, etc., R. Co., 48 Fed. charitable trust must be regarded as a 
Rep. 177; Sawyer V. Switzerland Ma- suit by the state. Grinnell r. Johnson, 
rine Ins. Co., 14 Blatchf. (U. S.) 452. 28 Fed. Rep. 2. 

5. Chapman v, Barney, 129 U. S. Suit Concerning Kortgage to State. — 
677. Where a note is made payable to the 

6. Paul V. Chilsoquie, 70 Fed. Rep. order of a state treasurer, but a mort- 
401. gage to secure it is made to the state, 

7. 24 U. S. Stat, at L. 552, c 373; 25 in any suit concerning the priority of 
U. S. Stat, at L. 433, c. 866. the mortgage or a sale of the land and 

8. Upshur County v. Rich, 135 U. S. transfer of the Hen to the proceeds 
470, holding that a suit against a state of the sale the state is the real party 
and a county thereof is not removable; in interest. Connecticut v, Adams, 6 
Postal Tel. Cable Co, r. Alabama, 155 Ohio Cir. Dec. 46, 2 Ohio Dec. 119. 

190 Volume XVIIL 



Ami M$ removal of CA uses. to Fadml Covrtl. 

is a real party in interest.* The court, however, may look 
through the record and ascertain whether or not, although not 
named as such, the state is in fact a real party. If the state is a 
real party in interest, in the absence of a controlling question 
arising under some federal law or the constitution the suit is not 
removable from the state to the United States Circuit Court.* 

In ID AstlMi of ^oetmoBt between private parties the state is not a 
party in interest though the question whether the land lies in one 
state or another is in controversy.* 

A PneMding by a Gorporatton to Take Land by Sminent Domain is not a 
suit to which a state can be regarded as a party.* 

1. State a Hominal or Formal Party. — The defendant duly removed the cause 
Where the state is merely a formal or to the federal Circuit Court, and the 
oomioal party and the action is prose- plaintiffs moved to remand, contend- 
cuted solely for the protection of a pri- ing that the state was the real plaintiff 
yate ri^ht in which it has no beneficial and that the cause was therefore not 
interest, the mere formal use of the removable. But that contention was 
name of the state would not defeat the overruled, the court saying: *' 1 had 
right of removal if the requisite diver- supposed * * * that the question 
sityof citizenship existed between the as to whether in a suit like this be- 
relator or the person for whose use the tween state railroad commissioners by 
suit was brought and the defendant, name and a nonresident citizen of the 
Indiana v, Alleghany Oil Co., 85 Fed. state, the state is a party, was settled 
Rep. 872. See also Indiana v. Lake by adjudications of the Supreme Court 
Erie, etc., R. Co., 85 Fed. Rep. 3. of the United States. Mr. Justice 
Thus, in an action in Missouri Lamar, in Pennoyer v. McConnaughy, 
broaghi in the name of the state to the 140 U. S. i, reviewed the decisions of 
use of the public schools of a county that court bearing more or less directly 
for the cancellation of a deed by a upon the question here involved. In 
county commissioner, it was held that that case the bill was lodged against 
the state was a merely nominal party, the land commissioners of the state of 
Missouri v. Alt, 73 Fed. Rep. 302. Oregon et al,, to restrain the state offi- 
In Memphis, etc., R. Co. v, Ala- cers from* doing acts alleged to be a 
bama, 107 U. S. 585, the court found it violation of complainant's contractual 
"unnecessary to consider whether the rights with the state. The jurisdiction 
Action brought by the state of Alabama of the federal court was challenged, as 
for the use of one of its counties can be in this case, on the ground that although 
considered as a suit brought by a citi- the state was not named as a party, 
zen of the state of Alabama, within the yet it was against the land commis- 
meaning of the Constitution and laws sioners, who were officers of the state, 
of the United States." acting under its authority, and there- 
in Hickman v, Missouri, etc., R. fore the state was in effect a party to 
^-. 97 Fed. Rep. 113, state railroad the suit. This contention was an- 
commissioners to whom complaint had swered in the negative, and the juris- 
heen duly made under the state statute diction of the federal court was 
established a reduced rate of charges maintained." The court also cited 
for a defendant railroad company, and discussed Reagan v. Trust Co., 154 
Thereafter they brought suit in the U. S. 362, and debated the question at 
Slate con ft charging that the defendant considerable length. 
company was proceeding in disregard 9. Hickman v. Missouri, etc., R. Co., 
of the act of the commissioners and 97 Fed. Rep. 116, citing Ames v. Kan- 
sas exacting a higher rate than that sas, iii U. S. 449; Stone v. South 
iixed. The prayer was for an injunc- Carolina, 117 U. S. 431. See also the 
tiOQ or sach other process, mandatory last note but one. 

or otherwise, as might be necessary in 8. Fowler v. Lindsey, 3 Dall. (U. S.) 

|be premises to restrain the defendant 411. 

from further continuing to violate the 4. Warren v. Wisconsin Valley R. 

Mngs and order of the plaintiffs. Co., 6 Biss. (U. S.) 425. 

191 Volume XVIII. 



VrM 8M« REMOVA L OF CA USES. to 7ed«l Couta 

Wh«n the Bait IhvoItm » Fsdina a«Mtioa it is no obstadc to removal 
that the state is a party, * 

(3) 7i"«i^ of Diverse Citizenship, — In order to authorize the 
removal of a suit on the ground of diverse citizenship the requisite 
diversity of citizenship must exist at the time of the commence* 
ment of the suit, and also at the time of the filing of the petition 
for removal. This rule has obtained under all the removal acts.* 
Hence, where the suit as originally brought is between citizens 
of the same state, the defendant cannot acquire a right of 
removal by changing his domictl.' And where a suit is com- 

1. Ames V. Karsas, iii U. S. 449; Indianapolis, etc., R. Co. v, Rislev, 50 

Southern Pac. R. Co. v. California, 118 Ind. 60; Cincinnati Sav. Bank v, feen- 

U. S. 109; Texas v. Texas, etc., R. ton, 3 Met. (Ky.) 940; Tapley 9. Martin, 

Co., 3 Woods (U. S.) 309; Illinois v. iz6 Mass. 275; Risley v. Indianapolis, 

Illinois Cent. R. Co., 33 Fed. Rep. etc., R. Co., i Hun (N. Y.) 203; Holden 

721. V. Putnam F. Ins. Co., 46 N. Y. i; 

8. Mattingly v. Northwestern Vir* Herndon v. Lancashire Ins. Co., T07 

ginia R. Co., 158 U. S. 53; Kellam v. N. Car. 193; Blackwell v. Lynchburg, 

Keith, 144 U. S. 568; La Confiance etc., R. Co., 107 N. Car. 217; Bardley 

Compagnie, etc., v. Hall, 137 U. S. 61; v. Ohio River, etc., R. Co., 119 N. Car. 

Jackson v. Allen, 132 U. S. 27; Stevens 744; Phoenix L. Ins. Co. v, Saettel, 33 

V. Nichols, 130 U. S. 232; Akers v. Ohio St. 278; Baltimore, etc., R. Co. 

Akers, 117 U. S. 197; Mansfield, etc., v, Pittsburg, etc., R. Co., 17 W. Va. 

R. Co. r. Swan, iii U. S. 3;9; Hous- 860. 

ton, etc., R. Co. v. Shirley, iii U. S. There were a few cases decided 
358; Gibson v. Bruce, 108 U. S. 562; under the Act of 1875, prior to the set- 
Phoenix Ins. Co V. Pechner, 95 U. S. tlement of the point by the Supreme 
185; Bradley v. Ohio River, etc., R. Court, which held that diverse citizen- 
Co., 78 Fed. Rep. 388; Foster v. Para- ship at the time of removal was suflS- 
gould Southeastern R. Co., 74 Fed. cient. Jackson v. Mutual L. Ins. Co., 
Rep. 273; Grand Trunk R. Co. v, 3 Woods (U. S.) 413; McLean v. St. 
Twitchell, 59 Fed. Rep. 729; Craswell Paul, etc., R. Co., 16 Blatchf. (U. S.) 
V. Belanger, 56 Fed. Rep. 529; Burn- 309; Curtin v. Decker, 5 Fed. Rep. 
ham w. Leoli First Nal. Bank, 53 Fed. 385; Wehl r. Wald. 17 Blatchf. (U. S.) 
Rep. 165; Camprelle v. Balbach, 46 342; Chicago, etc., R. Ca v, Mc- 
Fed. Rep. 81; Nickerson v. Crook, 45 Comb, 17 Blatchf. (U. S.) 371; 
Fed. Rep. 659; La Montague v, T. W. Stafford v. Hightower, 68 Ga. 394; 
Harvey Lumber Co., 44 Fed. Rep. 647; Jackson c Mutual L. Ins. Co., 60 Ga. 
Seddon v. Virginia, etc.. Steel, etc., 423; Phoenix L. Ins. Co. v, Saetiel, 33 
Co., 36 Fed. Rep. 6; Richmond, etc., Ohio St. 278. See also McGinnity «^. 
R. Co. V. Findley, 32 Fed. Rep. 642; White, 3 DHL (U. S.) 350. 
Johnston v, Don van, 30 Fed. Rep. 395; At Time of Bonoval. — Most of the 
£ndy v. Commercial F. Ins. Co., 24 foregoing cases laid down the entire 
Fed. Rep. 657; Carrick v. Landman, proposition as stated in the text, bat 
20 Fed. Rep. 211; Frelinghuysen v. were cases where the necessity of citi- 
Baldwin, 19 Fed. Rep. 49; MacNaugh- zenship at the time of commencement 
ton r. South Pac. Coast R. Co., 19 of the suit was the only point in dis- 
Fed. Rep. 881; Ferry 7. Merrimack, 18 pute. The following cases required an 
Fed. Rep. 657: Brinkerhoff v. Morris express ruling that citizenship at the 
Canal, etc. Co., 18 Fed. Rep. 97; time of removal was also necessary; 
Glover v. Shepperd, 15 Fed. Rep. 833; Gibson ?». Bruce, 108 U. S. 561 \ajfirm' 
Burdick v, Peterson, 6 Fed. Rep. ing Bruce v, Gibson, 9 Fed. Rep. 540]; 
840; Kaeiser v. Illinois Cent. R. Co., 6 Mansfield, etc., R. Co. v. Swan, iiz U. 
Fed. Rep. i: Beede v. Cheeney, 5 Fed. S. 381. See also the next note but one. 
Rep. 388; Rawle v. Phelps, 2 Flipp. 3. Ex p. Jones, 66 Ala. 20a; Tapley 
(U. S.) 471; U. S. Savings Inst, v, v. Martin, ir6 Mass 275; Holden v, 
Brockschmidt, 72 111. 371; People v. Putnam F. Ins. Co., 46 N. Y. 6; Dart 
Superior Ct., 34 111. 356; Weed Sewing v. Walker, (C. PI. Gen. T.) 43 How. 
Mach. Co. V, Smith, 71 III. 205: Pr. (N. Y.) 29, 4 Dalv (N. Y.) 188. 

19d Volume XVIII. 



ftm SUto REMOVAL OF CA USES, to Federal Courts. 

menced in a state court between citizens of different states and 
the plaintiff then removes into the state of which the defendant 
is a citizen, the defendant, though a nonresident of the state in 
' which the suit is brought, has no right afterwards to remove the 
cause.* 

lUmoval by Intervener. — Where an intervener petitions for removal 
his citizenship at the time of intervention is deemed to be at the 
commencement of the suit.* 

Change of CitisenBhip After Bemoval. — A change of citizenship after 
the removal of the cause cannot affect the jurisdiction of the 
federal court properly acquired.* 

(4) Where There Are Several Plaintiffs or Defendants — (a) Tlio 
Me Stoted. — Under every Act of Congress for the removal of 
causes on the sole ground of diverse citizenship * it has uniformly 
been held that where there is a pluraHty of plaintiffs or of defend- 
ants every necessary party upon one side of the controversy must 
be a citizen of a different state from every necessary party upon 
the other.* But the citizenship of the parties upon which federal 

1. Laird v. Connecticut, etc., R. Co., Semoval for Frqndioe or Local Infln* 

55 N. H. 375, where a citizen of New enee. — See infra^ I. 17. Removal for 

Hampshire saed a citizen of Vermont Prejudice or Local Influence, 

in a New Hampshire court. While the 5. Gage v. Carraher, 154 U. S. 656; 

cause was pending the plaintiff in good Wilson z/. Oswego Tp.. 151 U. S. 56; 

faith removed to Vermont, where he Merchants' Cotton Press, etc., Co. v, 

took up his permanent abode, and six Insurance Co. of North America, 151 U. 

months afterwards the defendant in S. 368; Brown v, Trousdale, 138 U. S. 

doe lime filed a petition for removal. 389; Thorn Wire Hedge Co. r. Fuller, 

It was held that the petition could not 122 U. S. 535; Peninsular Iron Co. *v. 

be granted. See also Taplcy v. Mar- Stone, 121 U. S. 631; East Tennessee, 

tin, 116 Mass. 275. etc., R. Co v. Grayson, 119 U. S. 243; 

"We think the rule is now well Peper v, Fordyce, 119 U. S. 471; 

established and must be literally en- Sloane v, Anderson, 117 U. S. 279; 

forced that in order that there may be Rand v. Walker, 117 U. S. 340; Stone 

jurisdiction it must appear that the di- v. South Carolina, 117 U. S. 433; 

verse citizenship existed at the begin- Coney v. Winchell, 116 U. S. 227; 

ning of the suit, and has continued Fletcher z'. Hamlet, 116 U. S. 410; Sully 

until the removal." Per Carpenter, v. Drennan, 113 U. S. 287; Hancock v. 

J., in Grand Trunk R. Co. r. Twitch- Holbrook, 112 U. S. 229; American 

cH, 59 Fed. Rep. 729. Bible Soc. v. Price, no U. S. 61; 

flnlMtitiition of Ezecntor. — Where a Shainwald v. Lewis, 108 U. S. 158; 
suit is begun between citizens of the Winchester v. Loud, 108 U. S. 150; 
same state and the defendant dies/^«- Myers v. Swann, 107 U. S. 546; Fraser 
tlente iite, the substitution of his execu- t*. Jennison, 106 U. S. 194; Corbin v. 
tor with a different citizenship from Van Brunt, 105 U. S. 576; Hyde v. 
the plaintiff does not enable the execu- Ruble, 104 U. S. 407; Barney v. La- 
tor to remove the cause. Brinkerhoff tham, 103 U. S. 209; Blake, v. McKim, 
*. Morris Canal, etc., Co., 18 Fed. 103 U. S. 336; Ayers v. Chicago, loi 
^ep. 97. U. S. 184; Removal Cases, 100 U. S. 

2. Burdick v. Peterson. 6 Fed. Rep. 457; Yulee v. Vose, 99 U. S. 545; Gard- 

840. 2 McCrary (U. S.) 135. ner v. Brown, 21 Wall. (U. S.) 36; 

8. Laird v. Connecticut, etc., R. Co., Knapp v. Western Vermont R. Co., 20 

55N. H. 379; Indianapolis, etc., R. Co, Wall. (U.S.) 117; Susquehanna, etc., 

V. Risley, 50 Ind. 64: Holden z;. Put- R., etc.. Co. v, Blatchford, 11 WalL 

nam F. Ins. Co.. 46 N. Y. 6. (U. S ) 172; Commercial, etc.. Bank v, 

1 Bemoval for Separable Ck»ntroyeny. Slocomb, 14 Pet. (U. S.> 60; Straw. 

— See in/ra^ 1. i6. d. Diverse Citizen-, bridge v. Curtiss, 3 Cranch (U.S.) 267; 

f^p and Separable Controversy. Parkersburg First Nat. Bank ». 

IS Eacyc. PL & Pr. — 13 198 Volume XVIIL 



Itom State REMOVAL OF CA USES, to Federal CourU. 

jurisdiction depends is that of the parties to the record, and it is 
no objection to removal that there may be necessary parties not 

Prager, oi Fed. Rep. 692; Davis v. dale, Deady (U. S.) 2qi; Allin v, Rob-* 

County Ct., 88 Fed. Rep. 705; Tracy inson, i Dill. (U. S.) 119; Case v, 

V. Morel, 88 Fed. Rep. 801; Ruohs v. Douglas, i Dill. (U. S.) 300; McBrat- 

Tarvis-Conklin Mortg. Trust Co., 84 ney v. Usher, 1 Dill. (U. S.) 368; Snow 

Fed. Rep. 513; Kane v. Indianapolis, v. Smith, 4 Hughes (U. S.) 204, 88 Fed. 

82 Fed. Rep. 772; Mutual Reserve Rep. 657; Le Mars v. Iowa Falls, etc.. 

Fund L. Assoc, v. Farmer, 77 Fed. R. Co., 4 McCrary (U. S.) 220; Walsh 

Rep. 931; Shearing v, Trumbull, 75 v. Memphis, etc., R. Co., 2 McCrary 

Fed. Rep. 33; Missouri v. New Madrid (U. S.) 156, 6 Fed. Rep. 797; Ruble v. 

County, 73 Fed. Rep. 304; Olds Wagon Hyde, i McCrary (U. S.) 513, 3 Fed. 

Works V. Benedict, 67 Fed. Rep. i; Rep. 330; Wilson v. Blodget, 4 McLean 

Security Co. f. Pratt, 64 Fed. Rep. 406; (U. S.) 362; Ward v. Arredondo, i 

Rogers v. Van Noriwick, 45 Fed. Rep. Paine (U. S.) 410; Ex p. Turner, 3 

514: Rike V. Floyd, 42 Fed. Rep. 247; Wall. Jr. (C. C.) 258; £x /. Girard, 

Anderson v. Bowers. 40 Fed. Rep. 3 Wall. Jr. (C. C.) 263; Torrey i/. 

708; South worth v. Reid, 36 Fed. Rep. Beardsly, 4 Wash. (U. S.) 242; Beards- 

451; Seddon v. Virginia, etc.. Steel, ley v. Torrey, 4 Wash. (U. S.) 286; 

etc., Co., 36 Fed. Rep. 6; Vinal t. Con- £x /. Andrews, 40 Ala. 639; Calder^ 

tinental Constr., etc., Co., 35 Fed. wood v. Braly, 28 Cal. 97; Miller v. 

Rep. 673; Reineman v. Ball. 33 Fed. Lynde, 2 Root (Conn.) 444; Withers?/. 

Rep. 692; Fisk r. Henarie, 32 Fed. Rep. Hopkins Place Sav. Bank, 104 Ga. 89; 

422; Reed v. Reed, 31 Fed. Rep. 53; Western Union Tel. Co. v. GrilBth, 104 

McElmurray v, Loomis, 31 Fed. Rep. Ga. 56; Young v. Oakes, 104 Ga. 62; 

396; Baniganz^. Worcester, 30 Fed. Rep. Angler v. East Tennessee, etc., R. Co., 

394; Shavetf/. Hardin, 30 Fed. Rep. 801; 74 Ga. 634; Bliss v. Rawson, 43 Ga. 

Chapman zf. Chapman, 2S Fed. Rep. I ; 181; Bryan v. Ponder, 23 Ga. 480; 

Grinnell v. Johnson, 28 Fed. Rep. 2; Chesapeake, etc., R. Co. z/. Dixon, (Ky. 

/» r/ McCIean, 26 Fed. Rep.49; Lyddy 1898) 47 S. W. Rep.. 615; Howland 

V. Gano, 26 Fed. Rep. 177; Wilson Coal, etc.. Works v. Brown, 13 Bush 

r.. St. Louis, etc., R. Co., 22 Fed. (Ky.)68i; Parberry v. Coram, 3 Bibb 

Rep. 3; Walser v. Memphis, etc., R. (Ky.) 107; Tibbatts v. Berry, 10 B. 

Co., 19 Fed. Rep. 152; Folsom v. Men. (Ky.)490; New Orleans r. Seixas, 

Continental Nat. Bank, 14 Fed. Rep. 35 La. Ann. 36; New Orleans Canal, 

497; Connell v. Utica, etc., R. Co., 13 etc., Co. v. Recorder of Mortgages, 27 

Fed. Rep. 241; Price v. Foreman, T2 La. Ann. 291; Tesson v, Gusman, 26 

Fed. Rep. 8ot; Maine v. Gilman, La. Ann. 248: Martin &. Coons. 24 La. 

II Fed, Rep. 214; Evans v. Faxon, 10 Ann. 169; Baxter v. Proctor, 139 Mass. 

Fed. Rep. 312; Hanover F. Ins. Co. 151 ; Broadway Nat. Bank v. Adams, 

V. Keogh, 7 Fed. Rep. 764: Chester v. 130 Mass. 433; Florence Sewing Mach. 

Chester, 7 Fed. Rep. i; Smith v. Hor- Co. v, Grover, etc.. Sewing Mach. Co., 

ton, 7 Fed. Rep. 270; Smith v. McKay, no Mass. 79; Mutual L, Ins. Co. v, 

4 Fed. Rep. 353; Burke v. Flood, i Allen, 134 Mass. 389; Crane tr. Reeder, 

Fed. Rep. 541; Sands v. Smith, i Abb. 28 Mich. 534; Yawkey ». Richardson, 

(U. S.) 371; Osgood V, Chicago, etc., 9 Mich. 531; Home v. Boston, etc., R. 

R. Co., 6 Biss. (U. S.)333; Mitchell v. Co.. 62 N. H. 454; Fisk v. Chicago, 

Tillotson, II Biss. (U.S.) 325; Rvan etc., R. Co., 53 Barb. (N. Y.) 481.3 

V. Young. 9 Biss. (U. S.) 67; Chicago, Abb. Pr. N. S. (N. Y.) 453; Miller r. 

etc., R. Co, V, Lake Shore, etc., R. Kent, (Supm. Ct.) 60 How. Pr. (N. Y.) 

Co.. 10 Biss. (U. S.) 126; Bixby v. 451; Fairchild r. Durand. (N. Y. Super. 

Couse, 8 Blatchf. (U. S.) 73; Hatch v. Ct. Spec. T.) 8 Abb. Pr. (N. Y.) 3^5; 

Chicago, etc., R. Co., 6 Blatchf. (U. Leonard v. Jamison, 2 Edw. (N. Y.) 

S.) 113; Chicago, etc., R. Co. v, Mc- 136; North River Steam Boat Co. v. 

Comb, 17 Blatchf. (U. S.)37i; Sawyer Hoffman, 5 Johns. Ch. (N. Y.) 300; 

V. Switzerland Marine Ins. Co., 14 Sifford v. Beaty, 12 Ohio St. 189; 

Blatchf. (U.S.) 451: Van Brum I. Cor- Shelby v, Hoffman, 7 Ohio St. 

bin, 14 Blatchf. (U. S.) 496; Petterson 453; Nye v. Nightingale, 6 R. 1.439; 

V. Chapman, 13 Blatchf. (U. S.) 395; Dunn v. Waggoner, 3 Yerg. (Tenn.) 591 

Hubbard v. Northern R. Co., 3 Blatchf. Guarantee Co. v. Lynchburg First Nat. 

(U. S.) 84, 25 Vt. 715; Field v, Lowns- Bank, 95 Va. 480; Washington, etc., 

194 Volume XVIII. 



fVom 8UU REMOVAL OF CA USES. to Federal Courts. 

named in the record whose presence would defeat the jurisdic- 
tion.* 

Immatorial that AU Join in Petition for Bemoval. — If one of the defend- 
ants is a citizen of the same state as one of the plaintiffs the suit 
is not removable though all of the defendants unite in the peti- 
tion for removal.* 

Joint Personal Eepresentatives. — Where a suit is brought by or 
against joint executors or administrators, the personal citizenship 
of all of them must be such as to confer jurisdiction on the fed- 
eral court, in order to warrant a removal.* 

He^TT Defendants Broaght In by Amendment stand as original parties so 
far as removal on tiie ground of diverse citizenship is concerned. "* 

Bi verse Citisenship Between Parties on Same Side. — The difference of 
citizenship must exist between the plaintiffs on the one hand and 
the defendants on the other; diversity of citizenship as to those 
between whom the controversy exists is alone regarded.* 

V^) Formal, Nominal, or Unneoessary Parties — aa. General Statement of 
^^^' — It is well settled that in applications for removal on the 
^ ^^nd of diverse citizenship, the citizenship of formal parties, 
^t nominal parties, or parties without interest united with the 

R. Co. V. Alexandria, etc., R. Co., 19 parties, and consideration of the peti- 

Grait. (Va.) 6qi; Beery v, I rick, 22 tion for removal was postponed until 

Grait. (Va.) 487; Kennedy z'. Ehlen, 31 the plaintiff had an opportunity to 

W. Va. 540; Bell v. Bell, 3 W, Va. bring them in, so as to enable the 

183. court to determine whether the contro- 

The Leading Case on this point since versy was really between citizens of 

the word " suit " in the Judiciary Act different states, and it was intimated 

of 1789 was changed by the Act of 1875 that, if they were not brought in the 

to" suit »  * in which there shall bill might be dismissed. See also Gor- 

be a controversy,*' appears to be Blake don z/. Green, 113 Mass. 259, a bill by 

V. VfcKim, 103 U. S. 336. a trustee for instructions in the cxecu- 

Citisen of Territory or District of Co- tion of his trust where all the cestui s 

liuabia. — Thus if one of the necessary que irustent were not before the court. 

parties is a citizen of a territory or of 2. Smith v. Horton, 7 Fed. Rep. 270; 

the District of Columbia the suit can- Ex p. Girard, 3 Wall. Jr. (C. C.) 263; 

not be removed by a party who is a Van Brunt v. Corbin, 14 Blatchf. (U. 

citizen of a state unless there is a S.) 496; Ruble v, Hyde, I McCrary 

separable controversy in the suit. (U. S,) 514, 3 Fed. Rep. 330. 

Chapoian v. Chapman, 28 Fed. Rep. i. 3. Hubbard v. Northern R. Co., 3 

See also supra, p. 187. Blatchf. (U. S.) 84. 25 Vt. 715. 

1. In re Stutsman County, 88 Fed. 4. Merchants' Nat. Bank v. Thomp- 
Rep. 337, citing Osborn v, U. S. Bank, son, 4 Fed. Rep. 876; Young v. Oakes, 
9 Wheat. (U. S.) 857. See also Mc- 104 Ga. 62, where the presence of the 
Henry r. New York, etc., R. Co., 23 new defendants of the same citizenship 
Fed. Rep. 67. as the plaintiff prevented a removal by 
Contra. — Baxter v. Proctor, 139 the original defendants whose citizen- 
Mass. 151, where one of several cestuis ship was diverse. 

que trustent brought a suit for the re- 5. Petterson v. Chapman, 13 Blatchf. 

moval of the trustee and the appoint- (U. S.) 399, where the court said that 

ment of another in his place. The the statute affirms nothing ** as to di- 

trustee, who was the only defendant versity of citizenship between the plain- 

and a citizen of a different state from tiffs, on the one hand, alone, and 

the plaintiff, filed a petition for re- between the defendants alone, on the 

moval. It was held that the other ces- other; for between them there would 

tms que trustent were indispensable be no controversy." 

196 Volum<i XVIIL 



From 8Ut« REMOVAL OF CA USES. to Federal Courta. 

real parties, will be ignored, and the citizenship of the real par- 
ties is alone to be considered.^ The rule is usually laid down 
substantially in that form; but a more accurate and satisfactory 
statement is that the citizenship of one who is not an indispensable 
party will be disregarded.* Nor is it material that he was made 

1. Wilson V, Oswego Tp., 151 U. S. Thurston, 6 R. I. 431; Henderson v, 
64; Bacon v, Ritres, 106 U. S. J04; Re- Cabell, 83 Tex. 545. 
moval Cases, 100 U. S. 469; Wood v. *' It would be a very dangerous doc- 
Davis, 18 How. (U. S.) 467; Garrard trine, one utterly destructive of the 
V. Silver Peak Mines, 76 Fed. Rep. i; rights which a man has to go into the 
Missouri v. Alt, 73 Fed. Rep. 302; Car- federal courts on account of his citizen- 
ver V. Jarvis-Conklin Mortg. Trust ship, if the plaintiff in the case, in in> 
Co., 73 Fed. Rep. 9; Shattuck v. North stituting his suit, can, without any 
British, etc., Ins. Co., 58 Fed. Rep. right or reason or just cause, and with 
609; Dow V, Bradstreet Co., 46 Fed. the express declaration that he asks no 
Rep. 826; Overman Wheel Co. v. Pope relief from them, join persons who 
Mfg. Co., 46 Fed. Rep. 577; Hender- have not the requisite citizenship and 
son V, Cabell, 43 Fed. Rep. 257; Brown thereby destroy the rights of the par- 
V. Murray. 43 Fed. Rep. 614; Ferguson ties in federal courts. We must, there- 
V. Ross, 38 Fed. Rep. 161; Seddon v, fore, be astute not to permit devices to 
Virginia, etc.. Steel, etc., Co., 36 Fed. become successful which are used for 
Rep. 7; Judah v, Iowa Barb-Wire Co., the very purpose of destroying that 
32 Fed. Rep. 561; Sioux City, etc., R. right." Per Mr. Justice Miller in 
Co. V. Chicago, etc., R. Co., 27 Fed. Arapahoe County r. Kansas Pac. R. 
Rep. 770: Hack v, Chicago, etc., R. Co., 4 Dill. (U. S.) 283. 
Co.. 23 Fed. Rep. 356; Bates v. New ** Persons who are only nominally 
Orleans, etc.. R. Co., 16 Fed. Rep. 294; interested in the coniroversy cannot 
Deford v. Mehaffy, 14 Fed. Rep. 181; confer jurisdiction and cannot lake it 
Price V, Foreman, 12 Fed. Rep. away,*' Per Justice Bradley in Girar- 
802; Texas v. Lewis, 12 Fed. Rep. i; dey v. Moore, 3 Woods (U. S.) 401. 
Pond V. Sibley, 7 Fed. Rep. I2q, 19 9. '* This rule, we think, may be ex- 
Blatchf. (U. S.) i8q; Sands v. Smith, i traded from the cases, that although 
Abb. (U. S.) 372; Wilder v. Union Nai. one may be a proper party, yet if he 
Bank, 9 Biss. (U. S.) 182; Aroma Tp. is not an indispensable party, he may 
V, Auditor of Public Accounts, 9 Biss. be treated as a nominal or formal 
(U. S.) 289: Hervey v, Illinois Midland party, and therefore as not standing in 
R. Co., 7 Biss. (U. S.) 103; Chicago, the way of a removal." /'^•r Acheson, 
etc., R. Co. V. McComb, 17 Blatchf. (U. J., in McHenry v. New York, etc., R. 
S.) 371; Hatch z/. Chicago, etc., R. Co., Co., 25 Fed. Rep. 67. 
6 Blatchf. (U. S.) 105; Field V. Lowns- " The question * * • is whether 
dale, Deady (U. S.) 291; Chester v, the party whose presence would defeat 
Wellford, 2 Flipp. (U. S.) 347; Goodnow the jurisdiction is an indispensable 
V. Litchfield, 4 McCrary (U. S.) 215; party to the controversy between the 
Wilson V, Blod<;;et, 4 McLean (U. S.) parties who are citizens of different 
362; Ward z'. ArrcdonJo, r Paine (U. slates." Perrin v. Lepper, 26 Fed. 
S.) 410; Edgerton r^. Gilpin, 3 Woods Rep. 548. 

(U. S) 277; Girardcy v. Moore, 3 See generally in support of the text 
Woods (U. S.) 401; Jones r*. Foreman, Wilson v. Oswego Tp., 151 U. S. 56; 
66 Ga. 382; Worisman v. Wade. 77 Ga. Merchants Cotton Press, etc.. Co. v. In- 
651; Sieiner v, Mathewson, 77 Ga. 657; surance Co. of North America. 151 U. 
Witheis v. Hopkins Place Sav. Bank, S. 381; East Tennessee, etc., R. Co. v, 
104 Ga. 89; Vimont v. Chicago, etc., Grayson, 119 U. S. 243; Peper v. For- 
R. Co., 64 Iowa 517; Sachse r. Citizens* dyce, 119 U. S. 471; Coney v. Winchell, 
Bank, 37 La. Ann. 364; Dennislon v. 116 U. S. 230; St. Louis, etc., R. Co. 
Potts, II Smed. & M. (Miss.) 42; Liv- v, Wilson, 114 U. S. 62; Sully v. Dren- 
ingston v. Gibbons, 4 Johns. Ch. (N. nan, 113 U. S. 291; Thayer v. Life 
Y.)94: Livermore r. Jenks, (Supm. Ct. Assoc, of America, H2 U. S. 719; Bar- 
Spec. T.) 11 How. Pr. (N. Y.)479; Tate ney t/. Latham, 103- U. S. 214, where 
cr. Douglas, 113 N. Car. 191; H^dley the distinction between proper and in- 
r. Dunlap, 10 Ohio St. i; James v. dispensable parties is expressly made; 

196 Volume XVIII. 



iTMtt BUU REMOVAL OF CA USES. to Federal Conrtt. 

a party on the motion of the petitioner for removal.* The fact 
that a formal and unnecessary defendant has filed an answer does 
not affect the right of removal by the real parties.* 

Bole Applies to Plaintlflii as Well as Befendants. — In most of the 
adjudged cases the question arose with respect to the interest of 
one who was joined as a defendant, but the rule applies also to 
parties joined as plaintiffs who are not indispensable.* 

Federal Jnrisdiotlon Befiised if Question Doabtftd. — Where a cause is 
removed upon the theory that one of the defendants is not an 
indispensable party it will be remanded if the question is one of 
doubt.* 

bb. Who Are and Who Are Not Formal or Unnecessary Parties — 
la General — In Equity. — The tests by which to determine who are 
and who are not indispensable parties in suits in equity,* on appli- 

Blake r. McKim, 103 U. S. 338; Oakes 263; Missouri v. Alt, 73 Fed. Rep, 

V, Yonah Land, etc., Co., 89 Fed. Rep. 302.* 

243; Sweeney v. Grand Island, etc., R. Where it sufficiently appears in the 

Co., 61 Fed. Rep. 5; New York Constr. record that one of the plaintiffs is sim- 

Co. V, Simon, 53 Fed. Rep. 4; Le Mars ply an agent or attorney of the other 

9. lowaFaUs, etc., R. Co., 48 Fed. Rep. plaintiff, and has no personal interest 

662; Rogers v. Van Nortwick, 45 Fed. in the controversy, his presence is of 

Rep. 514; Patchin v. Hunter, 38 Fed. no importance with respect to the de- 

Rep. 53; Vina! v. Continental Constr., fendant's right of removal. Overman 

etc., Co , 35 Fed. Rep. 673; Grinnell v. Wheel Co. v. Pope Mfg. Co., 46 Fed. 

Johnson, 28 Fed. Rep. 4; Lyddy v. Rep. 577. 

Gano. 26 Fed. Rep. 177; Perrin A party suing on a legal title cannot 

r. Lepper, 26 Fed. Rep. 547; Chicago, prevent a removal by joining as co- 

etc. R. Co. V. New York, etc.. R. Co.. plaintiff a party having an equitable 

24 Fed. Rep^ 517; New York v. New title. Over v. Lake Erie, etc., R. Co., 

Jersey Steam Boat Transp. Co., 24 63 Fed. Rep. 34. 

Fed. Rep. 818; Long v, Buford, 24 4. Evans v. Faxon, 10 Fed. Rep. 312. 

Fed. Rep. 246; Capital City Bank See also infra^ I. 40. g. (3) Cause Re- 

I'. Hodgin, 22 Fed. Rep. 211; Mills manded Where Jurisdiction Doubt fuL 

v.Central R. Co.. 20 Fed. Rep. 451; De- 6. Hatch v. Chicago, etc., R. Co., 6 

ford V, Mehaffy, 14 Fed. Rep. 181; Blatchf. (U. S.) 116; Golden v. Brun- 

Prlce V, Foreman, 12 Fed. Rep. 803; ing, 72 Fed. Rep. 4. 

SteVens v. Richardson, 9 Fed. Rep. Party Enential to Complete Belief. — 

193; Hanover F. Ins. Co. v. Keogh, 7 A defendant is indispensable when his 

Fed. Rep. 765; Ruckman v. Palisade presence is essential to give effect to 

Land Co.. i Fed. Rep. 369; Ruckman v. any decree establishing the right of the 

Rackman, i Fed. Rep. 590; Sheldon v, plaintiff against another defendant. 

Keokuk Northern Line Packet Co., Nye v. Nightingale, 6 R. 1. 439. Thus, 

1 Fed. Rep. 793; Chester f. Wellford, 2 where a suit was brought against a 
Flipp. (U. S.) 347; Steinkuhl v. York, corporation and a stockholder thereof 

2 Flipp. (U. S.) 379; Ward v, Arre- to determine the ownership of certain 
dondo, I Paine (U. S.) 412; Taylor v. shares of stock and to obtain a decree 
Rockefeller, 18 Am. L. Reg. N. S. 307; for their transfer to the plaintiff the 
Security Co. r/. Pratt, 65 Conn. 176; corporation was an indispensable 
Withers v, Hopkins Place Sav. Bank, party. Rogers v. Van Nortwick, 45 
104 Ga. 89; Wortsman v. Wade, 77 Ga. Fed. Rep. 513. A corporation defend- 
653; Townsend v. Sykes, 38 La. Ann. ant is a necessary party to a bill to 
411. enforce a judgment against it by com- 

1. Calloway v. Ore Knob Copper pelling contribution from its stock- 
Co., 74 N. Car. 200. holders. Walsh v. Memphis, etc., R. 

2. Carver z\ Jarvis-Conklin Mortg. Co., 2 McCrary (U. S.) 156,6 Fed. Rep, 
Trust Co., 73 Fed. Rep. 12. 797. 

8. Cooke r. Seligman, 7 Fed. Rep. PUdntiA Entitled to Ko Doereo are noc 

197 Volume XVIIL 



Vron State REMOVAL OF CA USES. to Fed«na ConrU. 

cations for removal, are not different from those which control in 
general equity practice and which are chiefly to be found in 

to be treated as parties, though joined, to prevent him from paying the mort- 

upon the question of removal. James gage debt is not a necessary party, 

r. Thurston, 6 R. I. 431. Ruckman v, Ruckman, i Fed. Rep. 

One who is made a copiaintiff in a 587. 
bill not with a view of obtaining any In a suit by a town to have certain 
decree in his favor, but solely for the township bonds declared void and the 
purpose of securing the rights of the levy of a tax for iheir payment en- 
other plaintiffs, must be regarded as a joined, the holders of the bonds may 
merely formal party. Hazard v, Rob- remove the cause without regard to the 
inson, 21 Fed. Rep. 193. citizenship of the public officers who 

Defendants Kot Amenable toBeeree. — are joined for the purpose of making 

Defendants against whom no relief is the injunction effective. Aroma Tp. 

prayed or against whom no decree can v. Auditor of Public Accounts, 9 Biss. 

be rendered are merely nominal par- (U. S.) 289. 

ties. Wilson v. Blodget, 4 McLean (U. An officer appointed by a court to 

S.) 362; New York Constr. Co. f. execute its decree of sale is not a neces- 

Simon, 53 Fed. Rep. 4; Wellman v, saiy party to a suit to nullify the de* 

Howland Coal, etc., Works, 19 Fed. cree on the ground of fraud, and by 

Rep. 51; James v, Thurston, 6 R. I. consequence enjoin the sale. Carver 

431. See also Ward v. Arredondo, i v. Jarvis-Conklin Mortg. Trust Co., 73 

Paine (U. S.) 413. Fed. Rep. 9. 

A defendant against whom no relief Officers of Corporations. — In a suit 

is prayed, and who disclaims all in- against a corporation and its grantee of 

terest, and has assigned his interest to land to set aside the conveyance on the 

a codefendant who petitions for re- ground of fraud, an officer of the cor- 

moval, is not a substantial party. Cal- poration who is in possession of the 

loway V, Ore Knob Copper Co., 74 N. land is not a necessary party. Na- 

Car. 202. tional Bank v. Wells River Mfg. Co., 7 

Bills for Injnnotion. — On a bill filed Fed. Rep. 750. 
by a corporation against another cor- Where a corporation and its officers 
poration to restrain the latter from are made codefendants in a suit and 
prosecuting proceedings to condemn the relief prayed for is the same in re- 
land by eminent domain, where the spect to all of (he defendants, and no 
only question in controversy is which relief is prayed against any officer in 
corporation has the better right to take his individual capacity, such officers 
the land, the sheriff and commissioners are merely nominal parties. Hatch r. 
appointed in the proceedings who are Chicago, etc., R. Co., 6 Blatchf. (U. S.) 
made codefendants are merely nomi- 105. See also Pond v. Sibley, 7 Fed. 
nal parties. Sioux City, etc., R. Co. Rep. 129, 19 Blatchf. (U. S.) 189. 
V. Chicago, etc., R. Co., 27 Fed. Rep. ** Where a corporation is the princi- 
770. pal, no amount of mere pecuniary in- 

In a taxpayer's suit against a judg- terest in the corporation by an indi- 

ment creditor of a city to restrain the vidual stockholder will make him 

collection of a lax to pay the judgment, a necessary or indispensable party.'* 

and also to set aside the judgment for New York v. New Jersey Steam-Boat 

fraud, city officials who are made de- Transp. Co., 24 Fed. Rep. 819. 

fendants for the purpose of restraining Where a defendant is sued jointly 

them from paying the judgment/r^- with the corporation of which he is an 

dcnte lite and are not charged with par- officer, for the purpose of obtaining 

ticipation in the fraud are merely some specific relief against him on a 

nominal parties, and their presence personal liability, he is not a merely 

does not affect the right of removal by nominal party. Hatch v. Chicago, 

the judgment creditor. May v, St. etc., R. Co., 6 Blatchf. (U. S.) 115. 

John, 38 Fed. Rep. 770. In a Snit Against Execnton, each of 

Where the subject-matter of the suit whom has qualified, all are indispens- 

is the ownership of a bond and mort- able parties. Blake v. McKim, 103 U. 

gage, which is claimed by the plaintiff S. 33S, a leading case, 

and by one defendant, the mortgagor Bill for Gonstmotion of WilL — In a 

against whom an injunction is sought suit by an executor against several 

198 Volume XVIII. 



Vrom 8Ute 



REMOVAL OF CAUSES. 



to Federal Oonrti. 



Other parts of this work.* Where the averments of the plaintiff's 
pleading are so general as to be capable of different construc- 
tions, it is proper for the court to examine other parts of the 
record to see what is the nature and probable character of the 
suit, and thus to determine who are and who are not the real 
parties in interest.* 

Spedal Statutory Begnlatione in Federal Courts. — The provisions of sec- 
tion 737 of the United States Revised Statutes,' so far as they 

beneficiaries claiming conflicting inter- Stock conveyed by the plaintiff to one 
ests in the will, to obtain a construction of the defendants by mulual mistake, 
of Che instrument, the executor is an and by him transferred to the other de* 



indispensable party. Security Co. v. 
Pratt, 64 Fed. Rep. 405. 

Defendants Oharged with Fraud. — 
Where relief is sought on the ground 
of fraud, defendants who are charged 
as actual participants in the fraudulent 



fendant with notice, both defendants 
are indispensable parties. Vina.1 v. 
Continental Constr. etc., Co., 35 Fed. 
Rep. 673. 

Suit Against Pledgor and Pledgee. — In 
an action against the maker and the 



acts are not nominal parties. Fox z\ guarantor of a note seeking a personal 

Mackay, 60 Fed. Rep. 4. judgment against the latter and a sale 

Suits Belating to Xortgages. — Amort- of property pledged to him by the 

gagor is a necessary party to a suit maker as security for the guaranty, the 

against him and the mortgagee to can- maker is a necessary party. Howland 

eel ihe mortgage on the ground of Coal, etc., Works v. Brown, 13 Bush 

fraud and collusion. Oakes v. Yonah (Kv.)6Si. 

Land, etc., Co., 89 Fed. Rep. 243, rtV/M^ Suits Belating to Admixiistration of 

as in point Marsh z'. Atlanta, etc. R. Trusts. — All the cestuis que trustent are 

Co., 53 Fed. Rep. 168. necessary parlies to a bill for removal 

In a Bill of Interpleader the plaintiff is of the trustee and appointment of an- 

an indispensable party until he has other in his place, Baxter z\ Proctor, 

been dismissed, Leonard v, Jamison, 2 139 Mass. 151; or to a bill by a trustee 

Edw. (N. Y.) 136; and both defendants for instructions in the execution of his 

are necessary parties, George f. trust, Gordon r. Green, 113 Mass. 

Pilcher, 28 Gratt. (Va.) 299. 259. 



Beftinet Corporation. — In a suit by a 
creditor against a stockholder in a cor- 
poration to enforce liability for his un- 
paid subscription, the corporation is 



In Ex p, Grimball, 61 Ala. 598, the 
trustee of certain property under a will 
filed a bill against parties claiming the 
property (viz., the brothers and sisters 



not a necessary party where its prop- of the deceased, her administrator, and 
erty and franchise have been sold, and her husband) for the settlement of his 
it has no organization, officers, or trust and for instructions as to the dis- 
agents anywhere. Weliman v. How- position of the property. All the par- 
land Coal, etc.. Works, 19 Fed. Rep. 51. ties except the husband, who resided 
Principal and Indemnitor. — In a suit in New York, were residents of Ala- 
in equity to recov^er from an insolvent bama. It was held that he was not 
defendant damages occasioned by its entitled to remove the case to a federal 
negligence, and also to enforce, in par- court, as the plaintiff was a necessary 
tial satisfaction of such damages, the party to the contro\^ersy between him- 
Itability of another defendant, a casu- self and the other defendants. 
alty insurance company, on a policy 1. See article Parties to Actions, 
held by the receiver of the insolvent as vol. 15. p. 584 et seq, 
a part of the assets of his tiust, the re- 8. New York &. New Jersey Steam- 
cei^er is a necessary party, and his Boat Transp. Co., 24 Fed. Rep. 817, an 
claim hostile to that of the plaintiff, action for injunction and accounting 
Moore r. Los Angeles Iron, etc., Co., where the plaintiff'saffidavitsfor a pre- 
89 Fed. Rep. 73, citing Anoka Lumber liminary injunction were scrutinized. 
Co. V. Fidelity, etc., Co., 63 Minn. 286, 8. Act of Feb. 28, 1839, 5 U. S. Stat, 
and holding that Bacon v. Rives, 106 at L. 321, c. 36, § 1 ; Rev. Stat. U. S., 
U. S. 99, was not applicable. § 737. For the substance of the stat- 
in a Bait to Obtain the Seetoration of ute and its effect on federal practice see 

199 Volume XVIII. 



From ftUt« REMOVAL OF CA USES. to Fadoral Conrti. 

have any remedial efficacy in suits in equity, do not apply in 
removal proceedings.* 

Agents, Garniflhoei, or Tnuteet. — Where a party is joined as an 
agent, garnishee, or trustee of a defendant, and is under no obli- 
gation to the plaintiff, and has no active duty to perform, his 
presence for jurisdictional purposes may be ignored.* But where 
the party thus joined occupies the relation of a trustee for both 
parties to the controversy and is under an obligation the per- 
formance of which the plaintiff seeks to enforce, he is an indis- 
pensable party.' 

the article Parties to Actions, vol. guished in Wilson r. Oswego Tp., 151 

15, p. 704. U. S. 64. 

1. Ames V, Chicago, etc., R. Co., 39 In New York Constr. Co, v. Simon, 
Fed. Rep. 885; Patchin v. Hunter, 38 53 Fed. Rep. i, which was a suit 
Fed. Rep. 51; James v. Thurston, 6 R. brought by the maker of a note against 
I. 432, holding that one who is actually a nonresident indorsee and owner 
joined and is a proper party cannot be thereof, for the purpose of having the 
treated as unnecessary by virtue of the note canceled, it was held that the fact 
federal statute; Denniston v. Potts, 11 that a banking corporation of the state, 
Smed. & M. (Nfiss.) 37. which held the note merely for coUec- 

2. A^nts. — Thus, in Wood v, tion, had been made a party defendant 
Davis, 18 How. (U. S.) 470, a suit had would not prevent the nonresident 
been brought by a citizen of Illinois owner and indorsee from removing the 
against citizens of Pennsylvania for an case to the federal court. See further 
accounting concerning certain trans- to the point that the citizenship of a 
actions, and to obtain the cancellation garnishee in a case is not regarded on 
of a certain note executed by the plain- a petition for removal by the defend- 
tiff, on the ground that it had been ant. Cook v. Whitney, 3 Woods (U. S.) 
fully paid. An agent of the defend- 715; American Nat. Bank v. National 
ants, who was a citizen of Illinois, and Ben., etc., Co., 70 Fed. Rep. 422. 

in whose hands the note had been A TruBtee under a deed of trust to se> 

placed merely for the purpose of col- cure the payment of certain notes is 

lection, was joined as a codefendant of not an indispensable party to a bill to 

the nonresident defendants, and as cancel the notes because they have 

against him a temporary injunction been paid. Chester v. Wellford, 2 

was asked to prevent him from surren- Flipp. (U. S.) 347, distinguishing Gardi- 

dering the note to his principals during ner v. Brown, 21 Wall. (U. S.) 36. 

ihe pendency of the litigation. The 3. Scoutt v. Keck. 73 Fed. Rep. 90Q, 

suit was held to be removable to the wherein the court said: " The case, 

federal court by the nonresident de- therefore, cannot be distinguished in 

fendants, on the ground that the agent principle from the recent case of Wil- 

was merely a formal and disinterested son v, Oswego Tp., 151 U. S. 56. In 

party. For other cases holding that that case a controversy arose between 

the citizenship of a mere agent or at- the plaintiff, a citizen of Missouri, and 

torney was immaterial, see Brown the defendant, a citizen of Kansas, rela- 

r. Murray, 43 Fed. Rep. 614; Myers v, tive to the right of possession of certain 

Murray, 43 Fed. Rep. 695; Wilson v, bonds that were in the custody of a 

Blodget, 4 McLean (U. S.) 362. bank, which was a corporation of the 

Garnishees. — In Bacon v. Rives, 106 state of Missouri. The bank was made 

U. S. 99, it was held that the right of a a party defendant to the suit, although 

nonresident defendant to remove a case it was a mere bailee of the bonds, hav- 

to the federal court was not defeated ing received them for safekeeping and 

by the fact that a resident of the state having agreed to surrender them on 

had been made a paity defendant the completion of certain work and on 

merely as an equitable garnishee, and the return of a certain receipt. It was 

to prevent him, during the pendency held, however, that inasmuch as the 

of the suit, from paying over certain suit was brought to obtain possession 

funds which belonged to the nonresi- of the bonds which were in the bank's 

dent defendant. The case was distin- custody, the bank was a necessary 

200 Volume XVIII. 



ftom BtaU 



REMOVAL OF CA USES. to Federal Courtt. 



ClMt Suits. — Where citizen plaintiffs sue as a class for the benefit 
of a class all of whom, whether named as plaintiffs or not, may 
avail themselves of the benefit of the decree if obtained, one of 
the class who is an alien and coplaintiff is a formal and unneces- 
sary party whose joinder does not prevent a removal.* 

Partiee Xade Indiepensable by Statute. — Patties joined in obedience 
to an express requirement of a statute must be regarded as indis- 
pensable.* 

party, and that the suit could not be been paid into court and the liability 

removed to the federal court by its co- of the deposit had ceased, the bank 

defendant, a citizen of Kansas, be- was a necessary party to the suit, and 

tnreen whom and the plaintiff a real the cause could not be removed. The 

controversy existed as to the right of court distinguished Wehl v. Wald, 17 

possession of the bonds." See also Blatchf. (U. S.) 342, and Healy v. Pre- 



Thayer v. Life Assoc, of America, 112 
U. S. 717; St. Louis, etc., R. Co. v. 
Wilson, 114 U. S. 60; Central R. Co. 
V. Mills, 113 U. S. 249; Crump v. 
Thurber. 115 U. S. 56; Pittsburgh, 
etc., R. Co. V. Bdliimore, etc., R. Co., 
61 Fed. Rep. 705; Myers v. Swann, 107 
U. S. 546; Pcper V, Fordyce, 119 U. S. 
469; Winchester v. Loud, 108 U S. 
130; Mayer v. Denver, etc., R. Co., 41 
Fed. Rep. 723; Moore v. North River 
Coastr. Co., 19 Fed. Rep. 803; Ex p. 
Grimball, 61 Ala. 598; Dunn v. Wag- 
goner, 3 Yerg. (Tenn.) 59. 

*' Where a party occupies a neutral 
position, and is in a manner a stake- 
holder or trustee, or otherwise bound 
to account to one of two other parties, 



vost, (U. S. Cir. Ct. 1879) 8 Rep. 103, 
on the ground that in those cases " the 
original debtor had ceased to be a 
party, the money was in court, and the 
two remaining parlies were of diverse 
citizenship." 

Where one holds the legal title to 
property for the joint use and benefit 
of himself and another, and both are 
made defendants in a suit concerning 
it, the holder of the legal title is a 
necessary and not a merely nominal 
party. Rand v. Wali^er, 117 U. S. 344. 

Where a party, though a trustee, 
would be personally bound by a decree 
against his codefendant, he is not a 
merely nominal party. Evans s/. 
Faxon, 10 Fed. Rep. 312. See also 



he is an indispensable party to the con- Ribon v. Railroad Companies, 16 Wall, 

troversy between them, if he still has (U. S.) 446. 

possession of the fund or property to A trustee charged with having 

be accoanied lor." Perrin t/. Lepper, fraudulently disposed of trust properly 

96 Fed. Rep. 548. is a necessary party to a suit against 

In Bailey v. New York Sav. Bank, 2 the fraudulent grantees to reclaim the 

Fed. Rep. 14, 18 Blatchf. (U. S.) 77, an property. Missouri v. New Madrid 



action was brought by a widow to re 
cover moneys deposited by her hus- 
band in a New York savings bank. 
On petition of the bank, under a state 
statute, an alleged executor of the de 



County, 73 Fed. Rep. 304. 

1. McHenry v. New York, etc., R. 
Co., 25 Fed. Rep. 65. 

2. Reed r. Reed, 31 Fed. Rep. 49, a 
statutory aciion to contest a probated 



cedent, a resident of Connecticut, was will, the statute providing that *' all 

made a party defendant. The bank the devisees, legatees, and heirs of the 

subsequently put in an answer, setting testator and other interested persons, 

up that it could not ascertain which of including the executor or administra- 

the two claimants was entitled to the tor, must be made parties to the ac- 



money, and prayed that when all the 
parties necessary to render the judg- 
ment of the court a protection to it 
should be brought in. such parties 
might interplead and settle their rights 
annong themselves, and that the bank 
might pay the money into court to 
await the final determination of the 
action. It was held by Circuit Judge 
Blatchf ord that until the moneys had 



tion;" Lyddy v. Gano, 26 Fed. Rep. 
177, a bill in equity by a creditor 
against the heirs of a deceased debtor 
to reach real estate descended, the stat- 
ute requiring all the heirs to be made 
defendants. See also McElmurray v, 
Loomis, 31 Fed. Rep. 395; Townsend 
V. Sykes, 38 La. Ann. 411. Compare 
Ellerman v. New Orleans, etc., R. 
Co., 2 Woods (U. S.) 120. 



201 



Volume XVIIL 



From Stole REMOVAL OF CA USES, to Fedona Courts. 

In Motions at Law the question as to who are necessary parties 
will be governed by the law of the state in which the suit is 
pending.* 

(c) Sham Befendaats. — The joinder of a sham defendant to defeat 
the jurisdiction of the federal court cannot prevent removal.* 
Such cases are where on the face of the plaintifi*s pleading no 
cause of action is stated against the defendant whose joinder is 
apparently an obstacle to removal.' Cases where the plaintiff's 
pleading stated an apparently good cause of action against a 
defendant fraudulently joined are treated in the following subdi- 
vision of this section. The petition for removal need not, it 
seems, allege the fraudulent purpose of the joinder.* 

(d) Defendants Frandnlently Joined to Prevent AemoyaL — Where the 
court is legally satisfied that one of several defendants against 
whom an apparent cause of action is stated was joined for the 
sole purpose of defeating the right of removal, he will be consid- 
ered as a sham defendant whose citizenship may be disregarded.* 
But in order that such joinder should be regarded as fraudulent, 
it must be alleged in the petition for removal not only that it 
was made for the purpose of avoiding the jurisdiction of the 
federal court, but also that the plaintiff's averments of joint lia- 
bility are unfounded in fact, and were not made in good faith 
with the expectation of proving them at the trial.* The fraudu- 

1. Sec Mitchell v. Stnale, 140 U. S. Dill. (U. S.) 277: Arrowsmith v. Nash- 
416. ville, etc., R. Co., 57 Fed. Rep. 165; 

Aotion Againit Principal an^Sorety. — Collins v, Wellington, 31 Fed. Rep. 

'* In an action to enforce a bond, note, 244. 

or other contract which is brought 4. Collins v. Wellington, 31 Fed. 
against the principal therein and his Rep. 244. where a morion to remand 
surety, it cannot be said that I he surety was denied upon proof that the co- 
is merely a * nominal or formal defendant was a mere sham defendant 
party.' " Mutual Reserve Fund L. having no place or interest in the con- 
Assoc. V, Farmer, 77 Fed. Rep. 931. trove rsy, although it was conceded 
See also Guarantee Co. v. Lynchburg that he was not joined for the purpose 
First Nat. Bank, 95 Va. 480. of preventing a removal. The court 

Action by Officer on Forthcoming Bond, said, however, that if it should appear 

— In an action by a maishal on a forth- thereafter that there was any ground 

coming bond for the use of the plain- for making him a party the cause 

titf in attachment the marshal is a would be remanded. See also Texas, 

merely nominal party. Wortsman v. etc., R. Co. v. Bloom, 85 Tex. 285; 

Wade, 77 Ga. 651. Nelson v. Hennessey, 33 Fed. Rep. 

2. Powers v. Chesapeake, etc., R. 113. But rt^w/ar^ Arrowsmith z^. Nash- 
Co., 65 Fed. Rep. 132. See also Hax ville, etc., R. Co., 57 Fed. Rep. 168, 
V, Caspar, 31 Fed. Rep. 501: Nelson v. where the petition for removal which 
Hennessey, 33 Fed. Rep. 113; Rivers is there quoted contained the allega- 
ta. Bradley, 53 Fed. Rep. 305, where a tion of fraudulent intent. 

servant sued his master and a coserv- 6. The United States Supreme Court 

ant for injuries received in the master's has not expressly so held, but it is 

employment, but failed to allege any " the necessary implication " of the 

negligence or breach of daty on the decisions. Per Taft, ^., in Hukill v, 

part of the coservant, and it was held Maysville, etc., R. Co., 72 Fed. Rep, 

that the latter must be regarded as a 751. 

merely nominal defendant. 6. Warax v. Cincinnati, etc., R. Co., 

3. Instances of Snch Cases Are, A ra pa- 72 Fed. Rep. 640: Illinois Cent. R. Co. 
hoe County v. Kansas Pac. R. Co., 4 v. Le Blanc, 74 Miss. 643, holding that 

202 Volume XVIII, 



from State REMOVAL OF CA USES. to Federal Conrti. 

lent purpose and the nonliability of the defendant fraudulently 
joined must be proved.* But the state court cannot inquire into 

the mere allegation of fraudulent join- the cause into the federal court, no at* 

der, which is quoted in the opinion, tempt being made to prove the aver- 

was not sufficient; Bowley v. Rich- ment. 

iDond, etc., R. Co., no N. Car. 317. Gharaoter and Amount of Proof. — It 

See also Louisville, etc., R. Co. v, must be proved that the averments of 

Waogelin, 132 U.S. 603; Chesapeake, liability " are so unfounded and inca- 

eic, R. Co. V. Dixon, (Ky. 1898) 47 S. pable of proof as to justify the infer- 

W. Rep. 615. ence that they were not made in good 

In Little v. Giles, 118 U. S. 596, faith with the hope and intention of 

where a bill in equity charged the de- proving them.    One who has 

fendanis jointly with having fraud a- a real cause of action for joint tort 

lently deprived the plaintiff of her against two persons cannot be deprived 

property, Mr. Justice Bradley said that of the right to bring his action against 

one of the defendants " could not, by both and to retain both in the case, and 

merely making contrary averments in to have the case heard with both as 

his petition for removal, and setting up defendants, merely because he joined 

a case inconsistent with the allegations them for the purpose of avoiding the 

of the bill, segregate himself from jurisdiction of the federal court. If 

the other defendants, and thus entitle the right exists, the motive for its ex- 

himself to remove the case into the ercise cannot defeat it. It should be 

United States court.** said, however, that where, as in this 

Precedents of Averments. — Forallega- case, there is manifested a desire to 

tions of fraudulent joinder see the re- prevent a removal by the unusual 

motral petitions quoted in Warax v. course of joining a locomotive engineer 

Cincinnati, etc., R. Co., 72 Fed. Rep. with a railroad company, the court 

63q; Hukill v. Maysville, etc., R. Co., will not be astute, by any strained con- 

72 Fed. Rep. 748; Deere ». Chicago, struction, to make the averments of 

etc., R. Co., 85 Fed. Rep. 877; Hukill the petition [declaration or complaint] 

V. Chesapeake, etc., R. Co., 65 Fed. support the plaintiff's right to join the 

Rep. 139. See further, as to the proper defendants." /'^r Taft, J., in Warax v. 

form of averments. Powers v, Chesa- Cincinnati, etc., R. Co., 72 Fed. Rep. 

peake, etc., R. Co., 65 Fed. Rep. 132; 640, holding that the mere fact that the 

Hukill V. Chesapeake, etc.. R. Co., 65 plaintiff had once brought suit on the 

Fed. Rep. 141; Dow v. Bradstreet Co., same cause of action against the peli- 

46 Fed. Rep. 828. tioning defendant without joining the 

Amendment of Petition. — Mere defects other was not sufficient proof of nonlia- 

and evident mistakes in the details of bility of the latter. To the same effect 

an averment of fraudulent joinder may see Hukill v. Maysville, etc., R. Co., 72 

be cured by amendment of the petition Fed. Rep. 745; Deere v. Chicago, etc., 

for removal after the case reaches the R. Co., 85 Fed. Rep. 876, holding that 

federal court. Powers v, Chesapeake, proof that the codefendant is without 

cic. R. Co., 65 Fed. Rep. 132. means and that, if recovered, a judg- 

1. Louisville, etc., R. Co. v. Wange- ment against him cannot be collected 

lin, 132 U. S. 59q; Golden v. Bruning, is not sufficient proof of his nonlia- 

72 Fed. Rep. 4; Bowley v. Richmond, bility. 
etc., R. Co., no N. Car. 318. In Dow r. Bradstreet Co., 46 Fed. 

In Plymouth Gold Min. Co. v. Ama- Rep. 824, the plaintiff sued the Brad- 
dor, etc.. Canal Co., 118 U. S. 264, a street Company and one Green for 
suit by a canal compa.ny against a min- damages alleged to have been caused 
iog corporation and its agents for pol- to him by the circulation of a report 
bting a stream of water belonging to touching his business and financial 
the plaintiff was held to have been standing, which was alleged to be 
rightly remanded to the state court, false; it being charged by the plaintiff 
although the corporation's petition for that Green was the agent of the Brad- 
removal alleged that it was the only street Company, by whom the report 
real defendant, and that the other de- was gotten up. which the company 
fendants were nominal parties only, furnished to its subscribers. TheBrai- 
and were sued for the purpose of pre- street Company sought to remove the 
venting the corporation from removing case from the state to the federal 

203 Volume XVIII 



TtWL Btat« 



REMOVAL OF CA USES. to Federal Conrti. 



and decide issues of fact made upon the petition for removal.^ 
The proof must be produced in the federal Circuit Court,* and 



upon them. They must be proved 
** by circumstantial and detailed evi- 
dence, so that the court may judge 
whether the charge of bad faith in the 
averments, for the purpose of evading 
the jurisdiction of the court, is sus- 
tained.'* Landers v. Fclion, 73 Fed. 
Rep. 313. But if the motion to icmand 
does not take issue on the facts averred 
in a verified petition, they roust be as- 

Brad street 



court, and averred in the petition for 
removal that Green was not and never 
had been the agent of the company, 
did not in fact make or forward the 
alleged untrue report, and had no con- 
nection therewith, and, upon these 
facts, averred that Green was made a 
party defendant solely for the purpose 
of defeating a removal of the case. 
The petition for removal was supported 

by the affidavit of Green, reciting the sumed to be true. Dow v 
same facts. It was held by the federal Co., 46 Fed. Rep. 824. 
court that the facts averred in the peti- 
tion for removal yi^x^ prima facie suffi- 
cient to sustain the removal. In 
Durkee v, Illinois Cent. R. Co., 81 
Fed. Rep. i, the same rule was fol- 
lowed, the averments in the petition 
for removal showing that the Cherokee 
and Dakota Railroad Company, which 
was joined as a defendant, was not an 
existing corporation, and had in fact 
nothing to do with the operation of the 



1. Pirie v, Tvedt, 115 U. S. 44. If 
the petition for removal makes ^ prima 
facie tASt. in its averments of fraudu- 
lent joinder, etc., (he state court is 
thereupon deprived of jurisdiction 
removal depends solely 

question. Arrowsmilh v. 

etc., R. Co., 57 Fed. Rep. 

V, Brad street Co., 46 Fed. 

Compare Montoe v. Connec- 



where the 
upon that 
Nashville, 
170; Dow 
Rep. 828. 



ticut River Lumber Co., 66 N. H. 628, 
train upon which the alleged accident where the question whether the state 
to the plaintiff happened. See also court should try the issue of fact seems 
Shepherd v, Bradstreet Co., 65 Fed. to have been regarded as one of cxpe- 
Rep. 142. diency, the court conceding, however. 

Where the plaintiff voluntarily dis- that the issue could " finally be deier- 
misses codefendanis, and admits that mined only by the federal court.'* 

S. See the preceding note. 
Xothod of BaUiog Isvne and Trial 
Thareof. — In Dow v. Bradstrcd Cc, 46 
Fed. Rep. 828, the court said that '* by 
filing affidavits in support of the facts 
averred in the petition for removal for- 
mal evidence is submitted for the con- 
sideration of the federal court, and if 
the facts set forth in the affidavits are 
deemed sufficient, no further evidence 
need be submitted unless issue is taken 
in some form upon the allegations of 
fact, when such issue will stand for 
trial in the federal court upon the evi- 
dence to be introduced by both parties 
thereon." In Hukill v. Maysville, 
etc.. R. Co., 72 Fed. Rep. 748, and 
Warax v. Cincinnati, etc., R. Co., 73 
Fed. Rep. 639, the plaintiff filed an an- 
swer in the federal court denying the 
averments of fraudulent joinder, etc., 



he joined them, not for the purpose of 
taking judgment against them, but 
merely to evade the jurisdiction of the 
federal court, fraudulent joinder and 
nonliability are conclusively shown. 
Hukill V. Maysville, etc., R. Co., 72 
Fed. Rep. 751; Hukill v. Chesapeake, 
etc., R. Co., 65 Fed. Rep. 138. 

The fact that suit was previously 
brought on the same cause of action 
against the petitioner for removal 
alone would tend to show a fraudulent 
joinder of the codefendant in the pres- 
ent suit. Warax v. Cincinnati, etc., 
R. Co., 72 Fed. Rep. 640. 

An attempt by the plaintiff to dis- 
miss the action, immediately upon the 
filing of a petition for removal, to- 
gether with a statement then made by 
the plaintiff's attorney that he intended 
to institute a new suit for a sum less 



than the jurisdiction of the federal made in the petition for removal, and 

court, was held to be strong proof of evidence was heard on the issue. See 

fraudulent joinder in Shepherd v. also Deere v. Chicago, etc., R. Co.« 

Bradstreet Co., 65 Fed. Rep. 144. See 85 Fed. Rep. 876; Golden v. Bruning, 7a 

also Arrowsmith v. Nashville, etc., R. Fed. Rep. 4. In Arrowsmith v, Nash- 

Co., 57 Fed. Rep. 170. ville, etc., R. Co.. 57 Fed. Rep. 170, a 

Allegations in a verified petition for plea in abatement to the petition for 

removal are not alone sufficient proof removal was filed in the federal court, 

when a motion to remand takes issue " It is permissible to this court, in a 

204 Volume XVIII. 



Trim Stoto REMOVAL OF CA USES, to Federal CourU. 

the affirmative of the issue is on the removing defendant.* 

(e) Bearrangement of Parties. — The Judiciary Act of 1 789 provided 
for a removal where ** a suit " was brought against an alien or 
a citizen of another state.* Under that act the rights of the par- 
ties in respect to a removal were determined solely according to 
the position they occupied in the pleadings as plaintiffs or 
defendants in the suit.' But the Act of 1875, as well as the 
"separable controversy" Act of 1866, and the ** prejudice or 
local influence " Act of 1867, provided,* and the Act of 1887-1888 
now provides,* for removal of a suit ** in which there shall be a 
controversy between" citizens of different states. Under this 
legislation, for the purposes of removal the matter in dispute 
may be ascertained, and the parties to the suit arranged on oppo- 
site sides of that dispute regardless of the relative positions occu- 
pied by them in the pleadings; and if in such arrangement it 
appears that those on one side are all citizens of different states 
from those on the other, the case is removable so far as diversity 
of citizenship is concerned.* 

contention like this, to entertain affi- 6. 24 U. S. Stat, at L. 552, c. 373; 25 

davits to get at the real state of the U. S. Stat, at L. 433, c. 866. 

facts respecting the object of such 6. Removal Cases, 100 U. S. 457; 

joinder, to enable the coart to see Evers v. Watson, 156 U. S. 527; Mer- 

whether or noi there be a joint cause chants' Cotton Press, etc., Co. v. In- 

of action against all the defendants, or surance Co. of North America, 151 U. 

whether or not it be one only by aver- S. 385; Wilson v. Oswego Tp., 151 

ment." Shepherd v. Bradstreet Co., U. S. 63; Brown r. Trousdale, 138 U. 

65 Fed. Rep. 144, where counter-affi- S. 389; Peninsular Iron Co. v. Stone, 

davits were used. Citing Nelson v. 121 U. S. 632; Carson v. Hyatt, 118 U. 

Hennessey, 33 Fed. Rep. 113; Rivers S. 286; Turner v. Farmers* L. & T. 

f. Bradley, 53 Fed. Rep. 305; Fergason Co., 106 U. S. 555; Haner v, Kerno- 

». Chicago, etc., R. Co., 63 Fed. Rep. chan, 103 U. S. 562; Blake v, McKim, 

177; Dow V. Bradstreet Co., 46 Fed. 103 U. S. 337; Pacific R. Co. v. 

Rep. 824. Ketch um, loi U. S. 289; Oakes v, 

Beoord on AppeaL — In order to pre- Yonah Land, etc., Co., 89 Fed. Rep. 

sent the question for review by the Su- 243; Mecke v. Valley Town Mineral 

preme Court, the transcript on appeal Co., 89 Fed. Rep. 213; Deere z\ Chi- 

should contain the affidavits or other cago, elc, R. Co., 85 Fed. Rep. 881; 

evidence produced on the hearing of Mutton v. Bancroft. 77 Fed. Rep. 481; 

the motion to remand, in support of Scoutt v. Keck, 73 Fed. Rep. 903; Lake 

the allegations of fraudulent joinder. St. EI. R. Co. v. Farmers' L. & T. 

Plymouth Gold Min. Co. v. Amador, Co., 72 Fed. Rep. 808; Security Co. v. 

etc., Canal Co., 118 U. S. 269. Pratt, 64 Fed. Rep. 406; Wolcoif v, 

1. Louisville, etc., R. Co. v. Wange- Sprague, 55 Fed.- Rep. 545; Reeves 
lin, 132 U. S. 602; Plymouth Gold r\ Corning, 51 Fed. Rep. 774; Insurance 
Min. Co. v. Amador, etc., Canal Co., Co. of North America za. Delaware Mut. 
118 U. S. 264. Ins. Co., 50 Fed. Rep. 250; Le Mars v, 

2. I U. S. Stat, at L. 79. § 12. Iowa Falls, etc.. R. Co., 48 Fed. Rep. 

3. Removal Cases, 100 U. S. 457, cit- 661, 4 McCrary (U. S.) 218; Adelbert 
>«^ Susquehanna, etc., R., etc., Co., v. College v. Toledo, etc., R. Co., 47 Fed. 
Blatchford, 11 Wall. (U. S.) 174. See Rep. 836; McNulty v. Connecticut 
alsoBybee v, Hawkett, 5 Fed. Rep. 6, Mut. L. Ins. Co., 46 Fed. Rep. 306; 
6Sawy. (U. S.) 593. In re San Antonio, etc., R. Co., 44 Fed. 

1 Act of 1875, 18 U. S. Stat, at L. Rep. 145; Brown v. Murray, 43 Fed. 

470. c. 137: Act of 1866, 14 U. S. Stat. Rep. 614; Mayer v. Denver, etc., R. 

at L. 306, c. 288; Act of 1867, 14 U. S. Co., 41 Fed. Rep. 723: Anderson v. 

Stat, at L. 558, c. 196. Bowers, 40 Fed. Rep. 709; May v, St. 

205 Volume XVIII. 



Frwn State REMOVAL OF CA USES. to Pederal Courts. 

(5) Citizefiship in State Where Suit Is Brought — Of PUdntiit — 
Under the Judiciary Act of 1789 it was necessary that the plain- 
tiff, or each of the plaintiffs if there were several, should be a 
citizen of the state where the suit was brought.* This was not 
necessary under the Act of 187$;* and under the Act of 1887- 
1888 it is not required that either party shall be a citizen of the 
state wherein the suit is brought,' except where removal is sought 
on the ground of prejudice or local influence.* 

Of Befendant. — Unless there is a separable controversy,* or 
removal is sought on the ground of prejudice or local influence,* 
the general rule is that where there are several defendants each 
of them must be a citizen of a state other than that in which the 
suit is brought.'' 

(6) Suits by Assignees, — The first section of the Act of 1887- 
1888, which prescribes the original jurisdiction of federal courts, 
provides substantially that no Circuit or District Court shall 
have cognizance of any suit to recover the contents of a chose in 
action in favor of an assignee unless such suit might have been 
prosecuted therein to recover such contents if no assignment had 

John, 38 Fed. Rep. 771; Woodrum r. son v. Dixon, 28 Fed. Rep. 8; Adelbert 

Clay, 33 Fed. Rep. 899; Thompson v. CoHege r. Toledo, etc., R. Co., 47 Fed. 

Dixon, 28 Fed. Rep. 8; Perrin v. Lep- Rep. 836. 

per, 26 Fed. Rep. 547; Pollok v. Louch- Joinder in Petition for Bemoval. — 
heim, 19 Fed. Rep. 465; Langdon v. Where by such rearrangement one or 
Fogg, 18 Fed. Rep. 5; Snow v. Texas more plaintiffs are found to be defend- 
Trunk R. Co., 16 Fed. Rep. 3, 4 Woods ants according to their real interests 
(U. S.) 394; Illinois v. Illinois Cent. R. they should join in the petition for re- 
Co., 16 Fed. Rep. 881; Sayer v. La moval. See Wilson t/. Oswego Tp., 151 
Salle, etc., Gas Light, etc., Co., 14 U. S. 63, and /«/ra, L 19. a. (5)y(wW^ 
Fed. Rep. 69; Greene v. Klinger, 10 of Alt Defendants. 
Fed. Rep. 690; Bybee v. Hawkett, 1. Hubbard v. Northern R. Co., 3 
5 Fed. Rep. 6; Ketchum v. Black Blatchf. (U. S.) 84, 25 Vt. 715; Eureka 
River Lumber Co., 4 Fed. Rep. 143; Consol. Min. Co. v. Richmond Consol. 
Burke v. Flood, i Fed. Rep. 541; Min. Co., 2 Fed. Rep. 829; Ex p, Tur- 
Walsh V. Memphis, etc., R. Co., 2 Mc- ner, 3 Wall. Jr. (C. C.) 258; Dennis- 
Crary (U. S.) 15S, 6 Fed. Rep. 797; toun v. New York, eic, R. Co., i Hilt. 
Springer v. Sheets, 115 N. Car. 370. (N. Y.) 62; Hazard v, Durant, 9 R. L 

'* Where the controversy is between O07; James v. Thurston, 6 R. I. 428. 

the complainant and the removing de- 2. Petterson v. Chapman, 13 Blatchf. 

fendant, who are citizens of different (U. S.) 398; Eureka Consol. Min. Co. 

states, the fact that there is another v. Richmond Consol. Min. Co., 2 Fed. 

defendant who is a citizen of the com- Rep. 829. 

plainant's state does not prevent the 3. Kansas City, etc., R. Co. v. Inter- 
case from being removed where the state Lumber Co., 37 Fed. Rep. 3; 
interest of such codefendant is identi- Alley v. Edward Hines Lumber Co., 
cal with that of complainant. Brown 64 Fed. Rep. 903. See also supra, p. 
V. Murray, 43 Fed. Rep. 614." Hut- 190. 
ton v. Bancroft, 77 Fed. Rep. 482. 4. See infra, I, 17. a. (2) ib) Citizen- 

Bearrangement Preventing BemovaL — sAip of Plaintiffs. 

V A rearrangement of the parties is usu- 5. See infra, L 16. b. (2) Citizejiship 

ally sought for the purpose of making of Parties to Separable Controversy, 

a suit removable that could not other- 6. See infra^ L 17. a. (2) \c) Citizen- 

wise be removed, as appears by most sAip of Defendants. 

of the foregoing cases; bdt the parties 7. See infra, I. 19. a, (3) {a) In Gen* 

may be transposed though the result eral, and \, 19. a. (5) Joinder of All 

may prevent a removal. See Thomp- Defendants. 

806 Volume XVIII, 



Ttm 8tatt REMOVAL OF CA USES. to Federal Courts. 

been made, while the second section of the act provides for the 
removal of suits " of which the Circuit Courts of the United 
States are given original jurisdiction by the preceding section." ^ 
Therefore a suit by an assignee in the class of cases just men- 
tioned cannot be removed to the federal court unless the citizen- 
ship of his assignor is different from that of the defendant.* 

b. Diverse Citizenship and Separable Controversy — 

(i) History and Remedial Purpose of Separable Controversy Clause. 
— Under the Judiciary Act of 1789 it was necessary that the 
character of citizenship requisite to give jurisdiction to the federal 
court by removal should be common to all the plaintiffs or 
defendants.' A class of cases had been mentioned in the opin- 
ions of the federal judiciary which ought to constitute exceptions 
to that rule, cases where the interests of the parties were so 
entirely distinct that a judgment or decree could be rendered in 
reference to a part without affecting the others.* No regulation 

1. 24 U. S. Stat, at L. 552, c. 373; 25 v. Manufacturers* Bank, (Supm. Ct. 

U. S. Stat, at L. 433, c. 866. Gen. T.) 14 Abb. Pr. (N. Y.J 436. 

8. Mexican Nat. R. Co. v, Davidson, 3. i U. S. Sfat. at L. 79, § 12. 

157 U. S. 201; Sharkey v. Port Blakeiy ** According to the uniform decisions 

MiU Co., 92 Fed. Rep. 425; McNulty of this court it applied only to cases in 

V. Connecticut Mut. L. Ins. Co., 46 which all the plaintiffs were citizens of 

Fed. Rep. 305. the state in which ihe suit was brought. 

Contra under Prior Bomoval Aots. -^ and all the defendants citizens of other 

Similar provisions in respect of the state?. It made no distinction be- 

original jurisdiction of the federal tween a suit and the different contro- 

courts in the Judiciary Act of 1789, z versies which might arise therein 

U. S. Stat, at L. 73, § 11, and in the between the several parties; that is, 

Act of 1875, 18 U. S. Stat. ai L. 470, c. Congress, when authorizing the re- 

I37t § If did not restrict the right of re- moval of the suit, did not permit any 

rooval, since the following section, controversy therein between particular 

which provided for removal, was not parties to be carried into the federal 

made dependent upon the preceding court. * * * if the whole suit 

section. Green v. Custard, 23 How. could not be removed, no part of it 

(U. S.) 484; Bushnell v, Kennedy, 9 could be taken from the state court.** 

Wall. (U. S.) 387; Claflin v. Common- Barney v. Latham, 103 U. S. 209. 

wealth Ins. Co., no U.S. 81; Dela- ** The term 'the defendant,' al- 

ware County v. Diebold Safe, etc., Co., though used in the singular number, 

133 U. S. 473; Barclay v. Levee was construed in a collective sense, so 

Com'rs, I Woods (U. S.) 254; Glenn v, as to include all the persons sued, be 

Walker. 27 Fed. Rep. 577; Rosenblatt they many or few. If any of these 

V. Reliance Lumber Co., 18 Fed. Rep. persons were not aliens or nonresi- 

705: Hobby V, Allison, 13 Fed. Rep. dents, then this technical defendant, 

401: Waterbury v. Laredo, 3 Woods constituted of all the individual de- 

(U. S.) 371; Leutze v, Butterfield, (C. fendants. was held not to bean alien 

PI. Gen. T.) i Abb. N. Cas. (N. Y.) or nonresident, and therefore not en- 

367, 52 How. Pr. (N. Y.) 376; Ay res v, titled to a removal. To remedy this 

Western R. Corp.. 45 N. Y. 260 Com- evil, so far as practicable, the Act of 

pareYtrry i\ Merrimack, i8 Fed. Rep. 1866 was passed.** Per Deady, J., in 

657; Ferry v. Westfield, 19 Fed. Rep. Fields v. Lamb, Deady (U. S.) 432. 

155; Berger r. Douglas County, 5 4. In Strawbridge r. Curtiss. 3 

Fed. Rep. 23. 2 McCrary (U. S.) 483: Cranch (U. S.) 267, Chief Justice Mar- 

Hardin v. Olson. 14 Fed. Rep. 705; Bell shall made an intimation thai while, as 

f. Noonan, 19 Fed. Rep. 225; New Or- a general rule, jurisdiction dependent 

leans Canal, etc , Co. v. Recorder of upon citizenship could be sustained 

Mortgages, 27 La. Ann. 291; Anderson only where all the parties on the same 

207 Volume XVIII. 



From State REMOVAL OF CA USES, to Federal Cenrtt. 

was made for such cases until the Act of 1866.* That act and its 
successors * were designed to provide for those cases, which had 
been the subject of judicial comment.' The original surmise 
that the operation of the provisions would be chiefly confined to 
chancery cases ^ was correct, as was also the judicial forecast that 

side were competent to sue or liable to may be removed into the Circuit Court 
be sued, yet a different rule might pre- of the United States for the proper dis- 
vail where several parties represented trict by the defendant or defendants 
several distinct interests, and some of therein, being nonresidents of that 
those parlies were and others were not stale. And when in any suit men- 
competent to sue or liable to be sued tioned in this section there shall t>e a 
in the federal courts. Judge Thomp- controversy which is wholly between 
son in Ward v. Arredondo, i Paine (U. citizens of different states, and which 
S.) 410, intimated that there might be can be fully determined as between 
cases in equity where several parties them, then either one or more of the 
represented distinct interests, so that defendants actually interested in such 
separate decrees might be made, where controversy may remove said suit into 
possibly some of the parties might take the Circuit Court of the United Slates 
the cause into the Circuit Court and tor the proper district.** 
others remain in the state court; but 8. Field v. Lownsdale, Deady (U. S.) 
that it ought, even in such cases, to be 292; -^•^A Andrews, 40 Ala. 647; 
a very strong case of separate and dis- Crane v, Keeder, 28 Mich. 534. 
tinct interests to sanction such a *' The evident purpose of the Act of 
course. See also Cameron v. M*Rob- t866 was to relieve a person sued with 
erts, 3 Wheat. (U. S.) 591. others in the courts of a state of which 

1. Act of July 27, 1866. 14 U. S. Stat, he was not a citizen, by one who was a 
at L. 306, c. 288. citizen, from the disabilities of his co- 
Suit to Bestraln or Exgoin. — The Act defendants in respect to the removal of 

of 1866 above cited contained, in addi- the litigation to the courts of the 

tion to the so-called separable contro- United States, if he could separate the 

vcrsy provision, a clause authorizing controversy, so far as it concerned him. 

the removal by a nonresident defend- from the others, without prejudice to 

ant joined with resident defendants of his adversary.*' Yulee v, Vose, 99 U. 

a suit ** instituted or prosecuted forthe S. 545. 

purpose of restraining or enjoining ** '* The precise object of the act was 

the former. For cases which arose to supply this deficiency in the existing 

under that clause see Jones v. Fore- laws.** Goodrich v. Hunton, 29 La. 

man, 66 Ga. 371; Stewart v, Mordecai, Ann. 373. 

40 Ga. i; Clark v. Opdyke, 10 Hun (N. '* The main purpose of the law of 

Y.) 383: Girardcy v, Moore, 3 Woods 1866 appears to have been the preven- 

(U. S.) 397. tion of a practice which took advantage 

2. Rev. Stat. U. S., § 639; Act of of a construction of the Act of 1789. 
1875, 18 U. S. Stat, at L. 470, c. 137; and served in many cases to defeat the 
Act of 1887-1888, 24 U. S. Stat, at L. benign purpose of the law. It came to 
552, c. 373, 25 U. S. Stat, at L. 433, c. be held that alien and nonresident 
866. The foregoing and the Act of citizen defendants could not take steps 
1866 are the only provisions ever made to remove when impleaded with others 
for removal of separable controversies, whc were citizens of the state in which 

Text of the Act. — The Act of 1887- the suit was brought; and on the foot- 

1888, above cited, section 2, provides ing of this interpretation plaintiffs 

in respect of removals on the grounds were led to implead or join a resident 

of diverse citizenship and a separable citizen with no other real object than 

controversy as follows: ** Any other to preclude the right of removal. To 

suit of a civil nature, at law or in remedy this mischief and carry out the 

equity, of which the Circuit Courts of original policy of the Act of 1789, Con- 

the United Slates are given jurisdiction gress intervened in 1866 and passed 

by the preceding section, and which the act of that year." /*^r Graves, C. J., 

are now pending or which may here- in Crane v. Reeder, 28 Mich. 534. 

after be brought in any state court, 4. Exp, Andrews, 40 Ala. 647. 

208 Volume XVIU. 



from State REMOVAL OF CA USES. to Federal Conrta. 

it would not prove to be of much benefit.* 

(2) Citizenship of Parties to Separable Controversy. — In order 
that a suit may be removed on the ground of a separable contro- 
versy therein, the requisite diversity of citizenship must exist 
between the parties to the separable controversy itself.* If an 
alieii is a necessary party thereto the suit cannot be removed ; * 
and even if there are two separate controversies in a suit it is not 
removable by a defendant in one of the controversies if another 
defendant in the same controversy is a citizen of the same state 
with the plaintiff.* 

Rearrangement of Parties. — The position of the parties on the record 
is immaterial^ and the court will arrange them on either side 
according to the nature and character of the controversy.* 

(3) Separable Character of Controversy — (a) Oeneral Teets — 
aa. Suit Must Contain Separate Causes op Action — Bole Stated. — There 
must exist a separate and distinct cause of action on which a 
separate and distinct suit might have been brought and complete 
relief afforded as to such cause of action, with all the parties on 
one side of that controversy citizens of different states from those 
on the other.* 

Siuceptible of Separate Trials. — The separate controversies must be 

1. In the vast majority of cases, a citizen of the same state with him; 
especially in the federal Supreme Mutual L. Ins. Co. v. Allen, 134 Mass. 
Court, the courts have held that there 389. 

was no separable controversy. The suit is not removable unless the 

2. George v. Pilcher, 28 Gratt. (Va.) citizenship of the parties to the alleged 
305. separable controversy is such that if it 

In a Bait by a State it was held that had been sued on alone the defendants 

" neither the whole of plaintiff's suit therein could have removed it. Hyde 

nor a separate controversy embraced v. Ruble, 104 U. S. 410. 
therein can be removed." Texas v. 6. Insurance Co. of North America 

Day Land, etc., Co., 49 Fed. Rep. 597. v, Delaware Mut. Ins. Co., 50 Fed. 

8. Hervey v, Illinois Midland R. Co., Rep. 250. where the court said: '* But 

7 Biss. {U. S.) 107. this always has reference to the contro- 

Alien FlaintifP. — A suit cannot be re- versies made by the pleadings, and 
moved on the ground of a separable does not authorize the interjection of a 
controversy between a citizen defend- suit not made by the pleadings, nor 
ant and an alien plaintiff. Deakin v, authorize the court to construct plead- 
Lea, II Biss. (U. S.) 30; Creagh v, ings that do not exist for such inter- 
Equitable L. Assur. Soc, 88 Fed. jected suit. The controversy must be 
Rep. I. in the shape of a suit, and not a bare 

An Alien Defendant cannot remove abstract idea, which might take the 

the suit on this ground. See infra^ I. form of a suit if the parties were so 

19. f. (i) Only Monresident Citizen De- minded.*' 
fendant Actually Interested. 6. Ay res v, Wiswall, 112 U. S. 192; 

4. Sloane v, Anderson, 117 U. S. 279; Louisville, etc., R. Co. v. Ide, 114 U. 
Creagh v. Equitable L. Assur. Soc, 88 S. 55; Fraser v, Jennison, 106 U. S, 
Fed. Rep. i; Scoult v. Keck, 73 Fed. 194; Hyde v. Ruble, 104 U. S. 409; 
Rep. 906; Thompson v. Dixon, 28 Fed. Barney v, Latham, 103 U. S. 205, ia 
Rep. S, where for the sake of argument which case this condition was fulfilled; 
the court conceded that there was a Mutual Reserve Fund L. Assoc, v, 
separable controversy, but remanded Farmer. 77 Fed. Rep. 931; Security 
the cause for the reason that one of the Co. sf. Pratt, 64 Fed. Rep. 406; Bur- 
necessary parties to the separable con- gunder v, Browne, 59 Fed. Rep. 498; 
troversy v/hose interest was adverse to Le Mars z\ Iowa Falls, etc., R. Co., 
that of the petitioner for removal was 48 Fed. Rep. 662; Patchin v. Hunter, 

18 Encyc. PI. &; Pr. — 14 309 Volume XVHl,. 



l^om Mtta REMOVAL OF CA USES. to Fedmi Cooru. 

such as would admit in a just sense of separate and distinct 
trials,^ and although, as will presently appear,* a removal carries 

38Fed. Rep. 53; Ramsey V. Call, 28 Fed. not remove it. Hebert v. Lefevre, 31 

Rep. 770; Thompsoa v. Dixon, 28 Fed. La. Ana. 363. 

Rep. 7: Perrin v» Lepper, 26 Fed. Rep. A suit against a debtor and one who 

547; New Jersey Zinc, etc., Co. v. had assumed his debts presents a 

Trotter, xS Fed. Rep. 337; Connell v. separable controversy with the latter. 

Utica, etc., R. Co., 13 Fed. Rep. 241; Mecke v. Valley Town Mineral Co., 89 

Le Mars v. Iowa Falls, etc., R. Co., 4 led. Rep. 209. 

McCrary (U. S.) 218; Townsend r. Cania of Aotion and Separable Ckintro* 
Sykes, 38 La. Ann. 410; O' Kelly e^. Rich- yerty Not Identical. — On the other 
mond, etc., R. Co.,89N. Car. 58; Faison hand, " a separate controversy is not 
V, Hardy, 114 N. Car. 429; Springer identical in signification with a separ- 
V, Sheets, 115 N. Car. 379; National able cause of action. There may be 
Docks, etc., R. Co. v, Pennsylvania separate remedies against several par- 
R. Co., 52 N. J. £q. 59; Northwestern, ties for the same cause of action, but 
etc., Hypotheek Bank v. Suksdorf, 15 there is only one subject-matter of con- 
Wash. 477. troversy involved." Gudger v. West- 

The removal act " does not contem- ern North Carolina R. Co., 21 Fed. 

plate the splitting up into different Rep. 83. See also Boyd v. Gill, 19 

parts of a cause of action which the Fed. Rep. 145; Western Union Tel. 

plaintiff is entitled to prosecute as a Co. v. National Tel. Co., 19 Fed. Rep. 

single suit, simply because a part of the 561 . 

cause might be fully determined as be- "The Case Xnit Be One Capable of 

tween the parties before the court. Separation into Parts, so that in one of 

leaving the other part 10 be determined the pans a controversy will be pre- 

in another independent suit." Golden sented with citlxens of one or more 

V, Bruning, 72 Fed. Rep. 5. states on one side, and citizens of other 

Pending a suit praying for the ap- states on the other, which can be fully 

pointment of a receiver of an insolvent determined without the presence of 

railway company, a trustee for mort- any of the other parties to the suit as 

gage bondholders took possession of it has been begun." -P^r Waite, C. J., 

the road under the mortgage and was in Fraser v. Jennison, 106 U. S. 194, 

joined as a defendant by an amended quoted in Brown v. Trousdale, 138 U. 

bill. It was held that he could not re- S. 396; Louisville, etc., R. Co. v. Ide, 

move the suit, although he was solely 114 U. S. 55; Ayres v. Wiswall, 112 U. 

interested in the question of the actual S. 192; Texas v. Day Land, etc.. Co., 

possession of the premises, since the 49 Fed. Rep. 593. See also Hyde v. 

solution of that question might depend Ruble, 104 U. S. 407; Barth v. Coler, 

upon the appointment of a receiver, 60 Fed. Rep. 466; Ames v. Chicago, 

which could not be made without the etc., R. Co., 39 Fed. Rep. 882; Sexton v. 

presence of the railroad company. Seelye, 39 Fed. Rep. 705; Anderson 

Watson v. Asbury Park, etc., St. R. Co., v. Appleton, 32 Fed. Rep. 859; Waller 

73 Fed. Rep. i. v. J. B. Pace Tobacco Co., 32 Fed. 

Instances of Separable Controyersies. — Rep. 860; Mutual L. Ins. Co. v. Allen, 

In Sharp v. Whiteside, 19 Fed. Rep. 134 Mass. 389; George v. Pilcher, 28 

150, the question was whether the Gratt. (Va.) 299. 

plaintiff had a right to carry passengers 1. Corbin r. Van Brunt, 105 U. S. 

into a park owned by one of the de- 576, in which case the suit was for the 

fendants and leased to the other de- recovery of land and damages for its 

fendants. It was held that the plaintiff detention; the controversy in regard to 

and the lessor had a separable contro- the recovery of the land was between 

versy. citizens of the same state, and the one 

Where in an action concerning the for damages for the detention between 

title to realty the defendant calls in his citizens of different states. The court 

warrantor against whom the statute held that separate and distinct trials of 

provides for no judgment in favor of these issues were not admissible, and 

the plaintiff, but only in favor of the that the case should be remanded, 

defendant, the latter may remove the The principle was applied in Mills v, 

suit on account of his separable con- Central R. Co., 20 Fed. Rep. 449. 

troversy. Davis v. Montgomery, 36 2. See infra, I. 16. b, ^) Removal 

La. Ann. 874. But the warrantor can- Carries Entire Suit, 

2X0 Volume XVIIL 



From Bute REMOVAL OF CA USES. to Federal Courti. 

all the controversies in the suit, it should be assumed in deter- 
mining the question of their separability that the jurisdiction is 
to be divided between the federal and state courts, and if it then 
appears that diverse rulings in the different courts on an issue 
common to all the controversies would confound the just rights 
of the parties, there can be no removal.* 

bb. Must Afford Complete I^elief — Acts of 1876 and 1887-1888 Construed 
AUke. — The Act of 1887-1888, SO far as it relates to separable 
controversies, provides for the removal of a suit in which there 
'* shall be a controversy which is wholly between citizens of 
different states." • That was also the language of the Act of 
1875,' 2Lnd the decisions construing the last-mentioned act are 
followed in construing its counterpart in the Act of 1887-1888.* 

The Bapreme Test. — Under both acts it has been uniformly held 
that the whole subject-matter of the suit must be capable of being 
finally determined between the citizens of different states, and 
complete relief afforded as to the separate cause of action, with- 
out the presence of other persons originally made parties to the 
suit.* This would seem to be the supreme test of separability 

1. Staling the proposition in another permit a removal if indispensable par- 
lay, if ibe rights of all the defendants ties on both sides of the suit were citi- 
must be measured and determined by zens of the same state, 
the same rule the controversies cannot 4. New York Constr. Co. v. Simon, 
he regarded as separate. /« r^ Foley, 53 Fed. Rep. i; Rogers r. Van Nort- 
80 Fed. Rep. 949. wick, 45 Fed. Rep. 514; Western Union 

^'here the judgment must be for or Tel. Co. v. Griffith, 104 Ga. 56. See 

asrainst all the defendants there is no also Vinal v. Continental Constr., etc., 

separable controversy. State v. Co- Co.. 34 Fed. Rep. 228. 

Iambus, etc., R. Co., 48 Fed. Rep. 626. Cues under the Act of 1866 are not al- 

See also Rogers v. Van Nortwick, 45 ways applicable because the removal 

Fed. Rep. 514. under that act split the suit. See. for 

8. 24 U. S, Stat, at L. 553, c. 373, §2; instance, McGinnity v. White, 3 Dill. 
25 U. S. Stat, al L. 434, c. 866, § 2. (U. S.) 355, where an action on con- 
See the text of the Act, supra^ p. 208, tract against partners was held remov- 
note 2. able by one of them, and the cause 

8. 18 U. S. Stat, at L. 470, c. 137, § 2. proceeded against the others in the 

The original ** separable contro- state court. Such a suit would not 

versy " Act of 1866, 14 U. S. Stat, at now be removable. See also Allen r. 

L. 306, c. 288, re-enacted in Rev. Stat. Ryerson, 2 Dill. (U. S.) 503; Simmons 

U. S., § 639, provided for removal by v, Taylor, 83 N. Car. 148. 

a defendant where "there can be a 6. Cases in Federal Courts. — Hanrick 

final determination of the controversy v. Hanrick, 153 U. S. 196; Wilson v. 

so far as concerns him, without the Oswego Tp., 151 U. S. 67; Merchants 

presence of the other defendants as Cotton Press, etc., Co. v. Insurance 

parties in the cause." Co. of North America, 151 U. S. 368; 

The'* Prejudice or Local Influence" Act Bellaire v, Baltimore, etc., R. Co., 146 

of 1867, 14 U. S. Stat, at L. 558, c. 196, U. S. 117; Blake v. McKim, 103 U. S. 

provided for the removal of ** a suit 339; Brooks v. Clark, 119 U. S. 502; 

* * in which there is controversy Crump t/. Thurber, 115 U. S. 56; Win- 

hetween a citizen of the stale in which Chester v. Loud, 108 U, S. 130; Shain- 

lliesuitis brought and a citizen of an- wald v. Lewis, 108 U. S. 158; Ayers v, 

oiher state;" and in the Sewing Mach. Chicago, loi U. S. 184; East Tennes- 

Co.'s Case, 18 Wall. (U. S.) 553, the sec, etc., R. Co. v. Grayson, 119 U. S. 

provision was construed to require a 240; Central R. Co. v. Mills, 113 U. S, 

controversy between the citizens of 249; Davis r. County Ct., 88 Fed. Rep. 

different states exclusively, and not to 705; Sweeney v. Grand Island, etc., R. 

ail Volume XVIIL 



From Stoto REMOVAL OF CA USES. to Fedoral GonrU. 

within the contemplation of the removal act, since there is seri- 
ous doubt of the constitutionality of the act if it were construed 

Co., 6i Fed. Rep. 5; Barth v, Coler, 60 And that test is that there must be a 

Fed. Rep. 466; Security Co. v, Pratt, controversy which is wholly between 

64 Fed. Rep. 406; Thurber v. Miller, the separate parlies, which can be fully 

67 Fed. Rep. 371; Thompson v. Dixon, determined as between them so as to 

28 Fed. Rep. 7; Perrin v. Lepper, 26 be effectual in separate actions. If 

Fed. Rep. 547; In re McClean, 26 Fed. such determination cannot be had 

Rep. 49; Long v. Buford, 24 Fed. Rep. separately and independently, then the 

241; Freidler v, Chotard, 19 Fed. Rep. case is not one which the statute au- 

227. See also Gardner v, Broivn, 21 thorizes to be transferred at all, either 

Wall. (U. S.) 36; St. Louis, etc., R. Co. wholly or in part." 

V. Wilson, 114 U. S.'6o. In a Eepleyin Suit Against Several At- 

Cases in State Courts. — Townsend v. tafthing Crediton whose attachments 

Sykes, 38 La. Ann. 410; Mutual L. were levied by the sheriff simultane- 

las. Co. V. Allen, 134 Mass. 389; Na- ously there is no separable controversy 

tional Docks, etc., R. Co. v. Pennsyl- between &ny of the defendants and the 

vania R. Co., 52 N. J. Eq. 59; O' Kelly plaintiff. Temple v. Smith, 4 Fed. 

V. Richmond, etc., R. Co., 89 N. Car. Rep. 392. 

58; Faison v. Hardy, 114 N. Car. 429; Suit on a Judgment. — In a suit to 
George v. Pilcher, 28 Gratt. (Va.) 299; enforce a judgment against the defend- 
North western, etc., Hypotheek Bank ant therein, uniting as a defendant, 
V. Suksdorf, 15 Wash. 477. See also among others, the indorser of the notes 
Crane v. Seitz, 30 Mich. 453. on which the judgment was rendered, 

** The test in these cases is not and seeking to subject securities in his 

whether the relief which a complain- hands to the payment of the judgment, 

ant or plaintiff (as the case may be) such indorser could not remove the 

shall be able to reach and gain against suit, although his liatility as i idorser 

one defendant is different from that was one in which his codefendants had 

which he mav obtain against another no interest, since " he was united with 

defendant. * * * Xhe test is them in respect to other matters where 

whether the controversies are so there could be no final determination 

blended and commingled as substan- of the controversy, so far as it concerned 

tially to involve the same inquiries him, without their presence." Yulee 

and conclusions.'* /'^r Severens, J., in v. Vose, 99 U. S. 544. 

Lewis V. Weidenfeld, 76 Fed. Rep. 146. Same Proof Applicable to /h. — "If a 

*' It is not enough that citizens of party brings a suit in a state court 

different states must be interested in against two or more defendants, upon 

the same issue or question, or contro- a cause of action of such a character 

versy, which arises in the course of the that he has a right to proceed to judg- 

case; but they must have such an in- ment against all, and where the same 

terest that when the question to which proof applies to all, it is not a divisible 

they are parties is settled, the suit is or separable controversy." Per Mc- 

thereby determined, or the right of re- Crary, J., in Le Mars v. Iowa Falls, 

moval is not given.** Per Blodgett, ets., R. Co., 4 McCrary (U. S.) 220. 

J., in Carraher v. Brennan, 7 Biss. (U. Prayer for Separate Aoconnting. — In 

S.) 500. Vinal v. Continental Constr., etc., Co., 

In Donohoe v. Mariposa Land, etc., 34 Fed. Rep. 228, the suit was held to 
Co.. 5 Sawy. (U. S.) 169, an equity suit, present a separable controversy with 
Judge Sawyer, holding that full relief the removing defendant " because the 
could not be granted without the pres- bill of complaint avers a cause of ac- 
enceof all the defendants, said: *' It is tion, and prays for damages and an 
no answer to say that the whole suit accounting as against that defendant 
would be transferred, and that then alone, for failure to perform a con- 
there would be but one decree, which tract.** Following "Boy h v. Gill, 19 Fed. 
would bind all parties, for we are not Rep. 145, 21 Blatchf. (U. S.) 543. See 
discussing the question as to what also Jones v. Foreman. 66 Ga. 381. 
would be transferred, but are dealing In an action to restrain the operation 
with the test which the statutes have of an unlicensed ferry it was held that 
prescribed, by which to determine the suit was not removable merely be- 
whether anything can be transferred, cause the plaintiff demanded an ac« 

212 Volume XVIIL 



ftwii 8Uto REMOVAL OF CA USES. to Federal Courtt. 

to allow the removal of a single indivisible suit which is not 
entirely between citizens of different states.* 

Controveny Hot Properly in Suit. — A defendant cannot have a 
removal upon the ground of an alleged separable controversy 
which cannot possibly be litigated in the suit.* 

In a Suit upon a Bight of Action Created by Statute there is no separable 
controversy between the plaintiff and any one defendant where 

count of *' any or either'' of the tend to cases in which citizens of a state 
defendants. New York v. New Jersey sue citizens of the same state and citi- 
Steam-Boat Transp. Co., 24 Fed. Rep. zensof another slate, and the plaintiff's 
818, where the court said: '* The ac- demand against all the defendants 
coQQt demanded from each is a mere is joint and incapable of separation 
incident to the principal relief, and and division by the defendants.** 
does not constitute a separable contro- And see Iowa Homestead Co. v. Des 
versy, as in the cases of Boyd t/. Gill, Moines Nav., etc., Co., 8 Fed. Rep. 
21 Blalchf. (U. S.) 543, and Langdon zr. 102; Bliss v. Rawson, 43 Ga. 183; 
Fogg, 18 Fed. Rep. 5, where the cause Stafford v. Twitchell, 33 La. Ann. 524; 
of action itself was joint and several. Florence Sewing Mach. Co. v. Grot^er, 
On this point also the decision of the etc., Sewing Mach. Co., no Mass. 80; 
circuit judge in the case of New York v. Bryant v. Rich, 106 Mass. 192. 
Independent Steam-Boat Co., 21 Fed. The Leading Case wherein it was held 
^^P- 593« is strictly in point and must that there was a separable controversy 
be held to be controlling.'* is Barney. z'. Latham, 103 U. S. 205. 
1. Constitational Qneetions. — Noques- In that case the plaintiff sued a corpo- 
tion seems ever to have been made by ration and several individual defend, 
the federal courts as to the power of ants, cHiming the equitable title to 
Congress to authorize the removal of a certain lands of which the corporation 
cause where there is one controversy held the legal title, and seeking a de- 
bet ween citizens of different states and cree for conveyance thereof to the 
another between the plaintiff and some plaintiff, and also seeking a decree 
defendants who are citizens of the against the individual defendants for 
same state with him. See Corbin v. a sum that should be found due from 
B^ies, 18 Fed. Rep. 5. Some of the them upon an accounting for sales of 
authorities, especially in the federal land made by them before the corpora- 
courts, incline to the opinion, without tion came into existence. It was held 
any express decision on the point, that that the individual defendants could 
^bere there is in any case a substan- remove the case on account of the 
lial controversy between citizens of separable controversy with them. The 
different states, the constitutional gram leading case wherein it was held that 
of judicial power attaches to it so as no separable controversy existed was 
10 sustain an Act of Congress author- formerly considered to be Blake z/. Mc- 
izing tae whole case to be removed Kim, 103 U. S. 336. But in present 
trrespective of the separability of such estimation it seems that Graves v. Cor- 
coniroversy, although it is conceded bin, 132 U. S. 571, has a much stronger 
that none of the Acts of Congress has claim to be the leading authority. 
h^cn intended to vitalize the constitu- 3. In a Foreclofliire 8i3t a third person 
tionil power to that extent. See the who was made a party as claiming 
dissenting opinion of Justice Bradley some unknown interest appeared and 
k" ^^™oval Cases, 100 U. S. 479, and petitioned for removal on the ground 
2*5 opinion in Girardey v. Moore, 3 of an alleged separable controversy 
Wo3ds(U. S.) 401. See also Sheldon consisting of his claim to the property 
^« Keolcuk Northern Line Packet Co., by an independent and paramount 
\^ Fed. Rep, 796 et seq.; Ruckman v, title. It was held that inasmuch as 
Rockman, i Fed. Rep. 589; Bybee such claim could not, according to the 
V. Hawkea. 5 Fed. Rep. 9; Chester v, rules of equity pleading, be litigated 
Chester, 7 Fed. Rep. 5. For contrary in the foreclosure suit, he had no right 
views see Exp. Andrews, 40 Ala. 649, of removal. California Safe Deposit^ 
where the court said. " The judicial etc., Co. v. Cheney Electric Light, etc., 
power of the United States does not ex- Co., 56 Fed. Rep. 257. 

213 Volume XVIII. 



From State REMOVAL OF CA USES, to Federal Oovrto. 

the statute makes all the defendants indispensable parties to the 
relief sought.^ 

Only One Snbttantial Defendant. — Where the defendant who peti- 
tions for removal is the only substantial defendant, and the 
interests of the other defendants are subordinated to and depend- 
ent on his, it appears that he has a separate controversy.* 

cc. Separate Defenses Immaterial — ifld) In General — The Bnle Stated. — 
A separate defense by one defendant in a joint suit against him 
and others upon a joint or a joint and several cause of action 
does not create a separate controversy so as to entitle that defend- 
ant, if the necessary citizenship exists as to him, to a removal of 
the cause.' 

Defense Inuring to Benefit of All. — Nor is a suit made removable 
because a defendant's separate defense peculiar to himself may 
defeat the entire suit.* 

Xore Proof Beqoired. — The necessity of proving more facts to 
warrant a recovery against one defendant than are necessary 
to warrant a recovery against a codefendant cannot be accepted as 
a test to determine whether a cause of action is divisible.* 

(bb) Actions on Contracts. — The interposition of separate defenses 

1. Lyddy v. Gano. 26 Fed. Rep. 177, Rep. 4; State v. Columbus, etc., R. 

a creditors' suit against the heirs of a Co , 48 Fed. Rep. 626. a mandamus 

deceased debtor to subject lands de- proceeding: Connecticut v. Adams, 6 

scended to them. Ohio Cir. Dec. 46, 2 Ohio Dec. 119, 

3. In Mitchell v. Smale, 140 U. S. proceedings in the Probate Court to ^ell 
40Q, an action of ejectment in Illinois real estate of a decedent to pay debts, 
against a landlord and his tenant, the Several Bemonetrants in Drainage Pro- 
latter admitting the tenancy, it was oeedings. — In a proceeding to csiablish 
strongly intimated that the landlord and construct a drain and to charge 
would be entitled to a removal on the upon all the lands benefited by its con- 
ground of a separable controversy be- struction the amount of such benefits, 
tween him and the plaintiff, the court the fact that each remonstrant has a 
considering that Ayers v. Watson, 113 separate defense by setting up that the 
U. S. 594, sustained this view, though proposed drain is not practicable, or is 
the point was not expressly adjudged not of public utility, or that his assess- 
in that case. However, three of the ment is loo large as compared with the 
justices dissented, insisting that under assessments of any or all other parties 
the Illinois statute the tenant was a to the proceedings, does net create a 
necessary party, and that "in Phelps separable controversy. /wr^Jarnecke 
V, Oaks, 117 U. S. 236, which was also Ditch, 6q Fed. Rep. 161. 
an action of ejectment, tenant and 4. In re Jarnecke Ditch, 69 Fed. Rep. 
landlord being parties defendant, the 171. The fact that a defense set up by 
latter coming in as here after the com- the defendant who petitions for re- 
mencement of the suit, this court held moval will, if established, inure to 
that ' the plaintiff has a real and sub- the benefit of all the other defendants 
stantial controversy with the defend- does not make it removable by him. 
ant (the tenant), within the meaning Plymouth Gold Min. Co. v, Amador, 
of the act for removal of causes from etc.. Canal Co., 118 U. S. 269. 
state courts, which continues after his 5. Ames v. Chicago, etc., R. Co., 39 
landlord is summoned in and becomes Fed. Rep. 884, where the court said: 
a party for the purpose of protecting "It often occurs in practice, where the 
his own interests.' " cause of action is single, that proof 

3. Starin v. New York, 115 U. S. sufficient to establish the liability of 

259: Corbin t/. Van Brunt, 105 U. S. one defendant is not sufficient to estab* 

577; Robbins v, Ellenbogen, 71 Fed. lish the liability of another.*' 

214 Volume XVIII. 



from State REMOVAL OF CA USES. to Foderal Oonris. 

does not make a suit on a contract divisible for the purpose of 

removal,^ and the fact that the state statute allows the plaintiff 
in an action upon a joint contract to recover against those who 
are actually liable if it appears that only a portion are bound 
does not divide the joint suit into separate parts.^ 

(cc) Suits in Equity — General Anle. — The rule that a separate 
defense does not introduce a separate controversy into the suit 
applies to suits in equity.* 

1. Louisville, etc., R. Co. v, Ide, 114 8. Louisville, etc., R. Co. v. Ide, 114 

U. S. 52; Putnam v. Ingraham, 114 U. U. S. 56; Putnam v. Ingraham, T14 U. 

S. 57; Brooks V, Clark, 119 U. S. 511; S; 57. 

Texas v. Day Land, etc., Co., 49 Fed. 8. Merchants Cotton Press, etc., Co. 

Rep. 597; Patchin v. Hunter. 38 Fed. v. Insurance Co. of North America, 

Rep. 51; Woodrura v. Clay, 33 151U. S. 381; Rosenthal v. Coates, 148 

Fed. Rep. 899. See also Hyde v, U. S. 142, a bill in equity by an as- 

Ruble, 104 U. S. 407. signee for the benefit of creditors to 

Suit Against Gonneotixig Garrien. — In disencumber the fund in his possession 
Louisville, etc., R. Co. v. Ide, 114 U. from alleged liens, each defendant set- 
S. 52, the suit was originally brought ting up a separate defense to the plain- 
by Ide in the Supreme Court of New tiff's claim; Graves v. Corbin, 132 U. 
York against several railroad com- S. 57S; Fidelity Ins. Co. v. Hunting- 
panies forming a continuous line, in- ton, 117 U. S. 280; Little v. Giles, 118 
eluding the plaintiff in error, to recover U. S. 596, a bill to quiet title; Starin 
damages for the loss of cotton shipped v. New York, 115 U. S. 248; St. Louis, 
at one end of the line and destined to etc., R. Co. v, Wilson, 114 U. S. 62; 
the other. The Louisville and Nash- Ayres v, Wiswall, 112 U. S. 187; Guar- 
ville Company separated in pleading, antee Co. v. Mechanics' Sav. Bank, 
denied thai the loss had occurred on etc., Co., 80 Fed. Rep. 771; TurnbuU 
its road, and removed the case, alleg- Wagon Co. v. Linthicum Carriage Co., 
ing in the petition for removal that the 80 Fed. Rep. 6; Thurber v. Miller, 67 
controversy with it was a separable Fed. Rep. 374; Sweeney v. Grand 
one. The Circuit Court remanded the Island, etc., R. Co., 61 Fed. Rep. 6; 
suit, and the order to remand was Insurance Co. of North America v, 
affirmed. Delaware Mut. Ins. Co., 50 Fed. Rep. 

In an Action on a PoUoy of Insoranoe 258; Wilder v. Virginia, etc.. Steel, 

against an insurance company and one etc., Co., 46 Fed. Rep. 682; In re San 

claiming the policy as an assignee, the Antonio, etc., R. Co., 44 Fed. Rep. 

company has no separable controversy 145; Ames v, Chicago, etc., R. Co., 39 

with either of the others. RIcNulty z^. Fed. Rep. 883; Sexton v. Seelye, 39 

Connecticut Mut. L. Ins. Co., 46 Fed. Fed. Rep. 705; Bissell v, Canada, etc.. 

Rep. 305. R. Co., 39 Fed. Rep. 226; Hax v. Cas- 

Aetioni Against Principal and Sorety. — par, 31 Fed. Rep. 499; Shaver v. Har- 

"The proposition is * * * unten- din, 30 Fed. Rep. 802; Thompson v, 

able that an action brought against a Dixon, 28 Fed. Rep. 5; Rumsey v. 

principal and his surety on a bond. Call, 28 Fed. Rep. 771; Long v. Bu« 

note, or other obligation involves a ford, 24 Fed. Rep. 247; Rich v. Gross, 

separable controversy, such as will en- 29 Neb. 340; National Docks, etc., R. 



title one of the defendants to remove Co. r. Pennsylvania R. Co., 52 N. J. 

~".q. 65; Clark v, Opdyke, 10 Hun (N. 
the plaintiff happen to be citizens of Y.) 383. Compare Connell v. Smiley, 



the case to the federal court if he and Eq. 65; Clark v, Opdyke, 10 



different states." Mutual Reserve 156 U. S. 340. 
Fund L. Assoc, v. Farmer, 77 Fed. " The option is with the plaintiff and 

Rep. 931. See also Western Union not with the defendants to determiae 

Tel. Co. w. Brown, 32 Fed. Rep. whether or not he will have the com* 

337. plete relief to which the rules and 

An Action on a Joint Bond against all practice in equity entitle him, in a 

the obligors presents no separable con- single suit or in several suits.'* 

troversy. Folsom v. Continental Nat. Sweeney v. Grand Island, etc., R. Co., 

Bank. 14 Fed. Rep. 497. 61 Fed. Rep. 5. 

315 Volume XVIIL 



trom State REMOVAL OP CA USES. to Federal Courts. 

Counterolaim. — A separable controversy cannot be created by 
filing a counterclaim in an equity suit, since such a pleading will 
not survive a removal to the federal court. ^ 

Groia-biU. — In an equity suit, if there is no separable contro- 
versy made by the original bill, the federal court will not retain 
the cause on account of any controversy in a cross-bill filed by a 
codefendant against the plaintiff and the removing defendant.* 

idd) Actions in Tort — Bole Stated. — An actioH of tort which might 
have been brought against many persons or against any one or 
more of them, and which is brought in a state court against all 
jointly, contains no separate controversy which will authorize its 
removal by some of the defendants into the federal Circuit Court, 
even if they file separate answers and set up different defenses 
from the other defendants, and allege that they are not jointly 
liable with them, and that their own controversy with the plain- 
tiff is a separate one.' 

1. Brande v. Gilchrist, i8 Fed. Rep. defendants jointly for malicious prose- 

465, pointing out that such a pleading cutlon and false imprisonment, where 

in equity cannot be recognized in the one defendant filed his separate an- 

federal courts. swer and then petitioned for removal; 

8. Donohoe v. Mariposa Land, etc., Dow v. Bradstreet Co., 46 Fed. Rep. 

Co , 5 Sawy. (U. S.) 163, since a cross- 826; First Presb. Soc. v. Goodrich 

bill cannot " go beyond the matters of Transp. Co., 10 Biss. (U. S.) 319; 

the original bill." Western Union Tel. Co. v, Griffith, 

In Maish v. Bird, 48 Fed. Rep. 608, 104 Ga. 56. See also Nelson v. Hen- 
McCrary, J., said: *' It is not necessary nessey, 33 Fed. Rep. 113; Gudger v. 
to decide whether, in any case, a de- Western North Carolina R. Co., 21 Fed. 
fendant in a chancery suit can, by Rep. 84; Smith v. Rines, 2 Sumn. (U. 
allegations in a cross-bill, present S.) 338; Illinois Cent. R. Co. v. Le 
issues upon which he can remove the Blanc, 74 Miss. 626; Bowley v. Rich- 
cause to a federal court when the par- mond, etc.. R. Co., no N. Car. 315. 
ties to the main controversy, the Contra^ Spangler v. Atchison, etc., R. 
obligor and obligee in the contract sued Co., 42 Fed. Rep. 305, which would 
on, are citizens of the same state.*' not now be regarded as sound. 

8. Per Justice Gray, in Powers v, *' * A defendant has no right to say 

Chesapeake, etc., R. Co., 169 U. S. 97; that an action shall be several which a 

Louisville, etc., R. Co. v. Wangelin, plaintiff elects to make joint. * * * 

132 U. S. 601; Plymouth Gold Min. A separate defense may defeat a joint 

Co. V. Amador, etc.. Canal Co., 118 U. recovery, but it cannot deprive a plain- 

S. 264; Pirie v. Tvedt, 115 U. S. 43; tiff of his right to prosecute his own 

Sloane v. Anderson, 117 U. S. 275; suit to final determination in his own 

Little V. Giles, 118 U. S. 596; Tor- way.' » * * The fact thatajudg- 

rence v. Shedd, 144 U. S. 530; ment in the action may be rendered 

Connell v. Smiley, 156 U. S. 340; against a part of the defendants only 

Hyde v. Ruble, 104 U. S. 407; Ayres does not divide a joint action in tort 

V. Wiswall, 112 U. S. 192; Creagh v. into separate parts any more than it 

Equitable L. Assur. Soc, 88 Fed. Rep. does a joint action on contract." Pirie 

i; Deere v. Chicago, etc., R. Co., 85 v. Tvedt, 115 U. S. 43. 
Fed. Rep. 881; Mutual Reserve Fund There is no separable controversy 

L. Assoc. V. Farmer, 77 Fed. Rep. 931; between the plaintiff and one of sev- 

Brown v. Coxe, 75 Fed. Rep. 689; eral defendants sued as joint trespass- 

Warax v. Cincinnaii, etc., R. Co., 72 ers, though the defendant seeking 

Fed. Rep. 640; Fergason v. Chicago, removal alleges in his petition therefor 

etc., R. Co., 63 Fed. Rep. 178; Arrow- that the other defendants acted as his 

smith 7'. Nashville, etc.. R. Co., 57 Fed. agents under his express direction, 

Rep. 165; O' Harrow v. Henderson, 52 with a bond of indemnity, and though 

Fed. Rep. 769, an action against tivo by the state statute his property must 

216 Volume XVIII 



fc«m State RE MO VA L OF CA USES. to Federal Courtt. 

A rortiixri it is not removable where the defendants set up no 
separate defenses.^ 

Eleetion to Sne Laea than AIL — Nor does a plaintiff by suing less 
than all of the tortfeasors thereby elect to make the action sever- 
able as to any of the defendants.' 

An Important Qnalifloation of tho General Bole in certain classes of tortS 
is considered in another section.^ 

(ee) Codefendant Not Served. — The right of removal on the ground 
of a separable controversy must be tested solely by the case 
made by the plaintiff in his pleading.* Hence it is unimportant 
that one of the defendants has not been served with process and 
has not appeared.* 

(/O Disclaimer or Default of CodefendanL — The faCt that one of the 

defendants files a disclaimer of interest, and thereby in a sense 
passes out of the controversy, does not leave a separable contro- 
versy as to the other remaining and contesting defendant.* Nor 

first be exhausted on execution before and removable controversy with the 

that of the other defendants can be plaintiff. Feibleman r. Edmonds, 69 

sold. Thorn Wire Hedge Co. v. Fuller, Tex. 334. 

122 U. S. 535. 1. Core v. Vinal, 117 U. S. 347. 

Ho Guse of Aetion Alleged Against 2. Fox v. Mackay, 60 Fed. Rep. 4. 

One. — In Evans v, Felton, 96 Fed. 8. See infra, I 16. b, (3) (r) ib, {bb) 

Rep. 176, where an action of tort was Exception to Rule. 

removed on the ground of an alleged 4. Ames v, Chicago, etc., R. Co., 39 

separable controversy, Kohlsaat, D. J., Fed. Rep. 884; Sexton v. Seelye, 39 

in remanding the cause, said: *• De- Fed. Rep. 705. See also infra^ I. 16. 

fendant's contention in support of the b, (3) {c) bb, {aa) General Rule, 

proposition that the controversy herein 5. Ames v. Chicago, etc., R. Co., 39 

is severable as to him is that the decla- Fed. Rep. 88t, holding that the oiher 

ration fails to state a cause of action as defendants could not remove the suit; 

against him, while it does state a good Patchin v. Hunter, 38 Fed. Rep. 51. 

cause of action as against the other de- 6. Hax v, Caspar, 31 Fed. Rep. 500, 

fcndant. The declaration charges that where Bre^frer, J., said: ** Recent deci- 

the ttro defendants jointly committed sionsof the Supreme Court have mate* 

the tort. It is admitted that if the rially limited what seemed to be the 

averments of fact were sufficient to import of the rule in Barney v. La* 

support this charge the cause would tham, 103 U. S. 205, and in effect say 

not be severable. Railroad Co. v, that the removal does not depend upon 

Wangelin, 132 U. S. 599. I hold that the question of what issue remains to 

nnder the facts in this case, where the be tried, but it is to be determined by 

declaration in form charges a joint tort the nature of the cause of action pre- 

againsl two or more defendants, the sented in the complaint." Citing 

question of whether or not the decla- Louisville, etc., R, Co. v, Ide, 114 U. S. 

ration states facts sufficient to establish 57, and Putnam v, Ingraham, 114 U. S. 

a good cause of action against either of 57. See also Rumsey v. Call, 28 Fed. 

die defendants is one for the deicrmi- Rep. 770; Washington ». Columbus, 

nation of the state court." etc., R. Co., 53 Fed. Rep. 673. Bui 

Initanoe of Separable Controversy. — In compare Reed v. Hard man County, 77 

a suit against the sureties in an attach- Tex. 165. 

ment bond for damages in suing out a Withdrawal of Defense. — In Brown r. 

wrongful attachment, where only ac- Trousdale, 138 U. S. 389, a petition for 

taal damages could be recovered removal by one of the defendants in an 

ss^ainst them, and the parties who sued equity suit, it was held not to be a 

<>atihe attachment were joined as co- controlling circumstance that on the 

^Icfendants against whom vindictive day of the order of removal the other 

damages were recoverable and claimed, necessary defendants withdrew their 

^e latter were held to have a separable pleadings and made affidavit that they 

217 Vdame XVIII. 



Tnm 8Uto REMOVAL OF CA USES. to Fed«ni Oouitt. 

does the fact that a necessary defendant has suffered a default 
for want of an answer put him outside of the case with reference 
to the right of the other defendants to a removal,* even where 
such defendant's default has been followed by a final judgment 
against him,* since a removal, if allowed, would carry the entire 
case,' including that judgment, and the federal court would have 
the anomalous duty of executing the judgment of a state court.* 

dd. Event of Suit Not Test. — Where there is community of citi- 
zenship between some of the parties to a suit, the fact that the 
suit actually terminates in a judgment or decree between parties 
having the requisite diversity of citizenship will not prevent the 
cause from being remanded by the federal Supreme Court on 
appeal or error.* 

ef. Misjoinder or Multifariousness. — A lUqoinder of PartieB may con- 
stitute a defense for one or all of the defendants, but such defense 
is not a controversy within the meaning of the statute.* 

believed the justice of the cause was ment by default against some of the 

with the plaintiffs, that they therefore defendants does not end the contro- 

did not choose to resist in the premises, versy as to them where they have ap- 

and denied at the same time all coll u- pealed from the judgment. Mooney 

Bion. V. Agnew, 4 Fed. Rep. 7. 

1. Wilson r. Oswego Tp., 151 U. S. 8. See infra^ I. 16. b, (4) Removal 
66, reversing yi Fed. Rep. 521; Put- Carries Entire Suit, 

nam v, Ingraham, 114 U. S. 59; In re Judgment Satisfled Before Bemoval. — 

Jarnecke Ditch, 69 Fed. Rep. i6q; Fai- In Removal Cases, 100 U. S. 469, a 

son V. Hardy, 114 N. Car. 434; Tate v, judgment against some of the defend- 

Douglas, 113 N. Car. 190. ants in respect of one part of the suit 

2. Burch V, Davenport, etc., R. Co., had been disposed of by levy and sale 
46 Iowa 454; BroolkS v, Clark, 119 U. under execution. Thereupon another 
S. 502, holding that the case dififered defendant who was then first brought 
from Putnam v. Ingraham, 114 U. S. into the suit by actual service of pro- 
57, cited in the preceding note, ** only cess was held entitled to remove the 
in degree and not in kind.'* and distin- suit as to his controversy with the 
guishing Yulee v, Vose, 99 U. S. 539, plaintiff. 

on the ground that the latter case was 4. Brooks r. Clark, 119 U. S. 513. 

decided under the Act of July 27, 1866, See also Burch v, Davenport, etc., R. 

14 U. S. Stat, at L. 306, c. 288, which Co., 46 Iowa 454, and another point 

provided for a removal of the separable suggested in Fairchild v. Durand, (N, 

controversy and not the entire suit. Y, Super. Ct, Spec. T.) 8 Abb. Pr. (N. 

See also Fairchild v. Durand, (N. Y. Y.) 310. 

Super. Ci. Spec. T.) 8 Abb. Pr. (N. Y.) 5. Crump v, Thurber, 115 U. S. 60, 

305. where the court said that " the event 

In Rosenthal v, Coates, 148 U. S. of the suit * * * is not a proper 

147, a species of interpleader suit, the test of the jurisdiction.** 

plaintiff, under a mistaken notion of 6. Deere z/. Chicago, etc., R. Co., 85 

the law, paid to some of the defendants Fed. Rep. 876, where Shiras, J., said: 

the amount due them, pending an ap- *' If, upon the face of the petition [the 

peal, but it was held that as they were plaintiff's pleading], it appears that the 

still parties to the record, against plaintiff has joined therein two contro- 

whom the plaintiff might be entitled to versies, separate and distinct, and that 

some sort of relief, they were not elimi- one of them is between citizens of 

nated from the suit so as to enable the different states and involves the requi- 

sole remaining defendant to remove site amount, then the right of removal 

the cause on the ground of a separable is shown to exist, no matter whether 

controversy. Distinguishing Yulee v, the two actions could be properly 

Vose, 99 U. S. 539. joined in one suit or not. A misjoin- 

Appeal Pending. — A /ortiori sl jndg- der of parties as defendants to one 

218 Volume XVIII. 



from 8Uta REMOVAL OF CA USES, to Federal Courtt, 

Xnltifluioiuneas in Bill in Equity. — If a bill in equity presents sepa- 
rable controversies it is no objection to removal that the bill is 
multifarious in that regard.^ 

ff. Main and Incidental Controversibs. — Although the removal 
statute contains no suggestion of any particular kind or degree 
of controversy as a main or principal one, or a minor or inciden- 
tal one, and some of the earlier cases did not make that distinc- 
tion,' it is now the settled doctrine that where the relief sought 
against one of several defendants is merely incidental to the 
main purpose of the suit, the fact that such incidental relief 
relates to only one of the defendants does not make it a sepa- 
rable controversy in the sense of the removal act.* 

Cause of action does not give a right of mand it to the state court as justice 

removal under the federal statute. A requires." See also Carter v, Scoit, 82 

misjoinder of several causes of action Ga. 297; Hax v. Caspar, 31 Fed. Rep. 

in one suit is not a ground of removal. 501; Thompson v. Dixon, 28 Fed. 

The fact that in one suit are embraced Rep. 7. 

two or more severable controversies 2. Thus in Bybee v, Hawkett, 5 Fed. 

will justify a removal, provided one ot Rep. i, 6 Sawy. (U. S.) 593, il was held 

the controversies is between citizens of that where there is a controversy in a 

different stales, and it includes the suit, even if it is not the main contro- 

requisite amount; and the right of re- versy therein, which is wholly between 

moval in such case is not affected either citizens of different states, and which 

way by the question whether the sever- can be fully determined as between 

able controversies actually included in them, then any one of the defendants 

the suit are properly so included or actually interested in such controversy 

not.'* Distimruisking Warax v, Cin- may remove the suit, 
cinnati, etc., R. Co , 72 Fed. Rep. 637, 3. Ames v. Chicago, etc., R. Co., 39 

on the ground that in the latter there Fed Rep, 884, citing Fidelity Ins. Co. 

was a joinder of defendants on distinct v. Huntington, 117 U. S. 280. See also 

grounds of liability, and not a mere Torrence v. Shedd, 144. U. S. 527; Cor- 

misjolnder of parties to one cause of bin v. Van Brunt, 105 U. S. 576; 

action. Shainwald v. Lewis, 108 U. S. 158; 

1. Barney v. Latham, 103 U S. 2x6, Bellaire v, Baltimore, etc., R. Co., 146 

where the court said: ** The state court U. S. 117; Thurber v. Miller, 67 Fed. 

ought not to disregard the petition Rep. 373; Sweeney v. Grand Island, 

upon the ground that in its opinion etc., R. Co., 61 Fed. Rep. 6; Le Mars 

the plaintiffs, against whom a removal v, Iowa Falls, etc., R. Co., 48 Fed. 

is sought, had united causes of action Rep. 662, 4 McCrary (U. S.) 220; Maish 

which should or might have been as- v. Bird, 48 Fed. Rep. 608; Wilder v, 

serted in separate suits. Those are Virginia, etc., Steel, etc., Co., 46 Fed. 

matters more properly for the determi- Rep. 681; Bissell v. Canada, etc., R. 

nation of the trial court, that is the Co., 39 Fed. Rep. 225; McElmurray v. 

federal court, after the cause is there Loomis, 31 Fed. Rep. 396; Winchell v, 

docketed. If that court should be of Coney, 27 Fed. Rep. 482; New York 

opinion that the suit is obnoxious to v. New Jersey Steam-Boat Transp. 

the objection of multifariousness or Co., 24 Fed. Rep. 818; Mills v, Cen- 

misjoinder, and for that reason should tral R. Co., 20 Fed. Rep. 449; First 

require the pleadings to be reformed, Presb. Soc. r. Goodrich Transp. Co., 

both as to subject-matter and parties, 10 Biss. (U. S.^ 319; Carraher v, Bren- 

according to the rules and practice nan, 7 Biss. (U. S.) 501: Chicago v, 

which obtain in the courts of the Gage, 6 Biss. (U. S.) 472; Commercial, 

United Slates, and if, when that is etc.. Bank v. Corbett, 5 Sawy. (U. S.) 

done, the cause does not really and 172; Winchell v. Coney, 54 Conn. 32; 

substantially involve a dispute or con- Burls c. Loyd, 45 Ga. 105; Burch v. 

troversy within the jurisdiction of that Davenport, etc., R. Co., 46 Iowa 454. 
court, it can, under the fifth section of A separable controversy within the 

the Act of 1875, dismiss the suit or re- meaning of the statute must be some« 

219 Volume XVIII. 



twm State REMOVAL OP CA OSES, to Fedml Oonrte. 

gg. Separate Suits Distinguished prom Separate Controversies. — 
Where a single proceeding consists of several suits triable sepa- 
rately, each is a separate suit and not a separable controversy, 
and may be removed without regard to the citizenship of the 
parties to any of the other suits. * 

hh. Separable Controversy with One of Several Plaintiffs. — The 
question of separable controversy usually arises in cases where 
one defendant seeks to segregate his controversy from that of 
his codefendants with a common plaintiff. A single cause of 
action is not rendered separable because several plaintiffs having 
separate and distinct interests elect to join in a suit to enforce 
a right which is common to all, though all need not have joined 
in enforcing it.* There can be no removal on the ground of a 
separable controversy with one of several plaintiffs who is a 
merely formal party.' 

it. Severance by Election of Plaintiff. — When a plaintiff elects 
to sue defendants jointly on a joint and several cause of action, 
and the cause is removed by one defendant without objection, 
and proceeds to judgment in the federal court against him alone, 
the plaintiff consenting, on appeal the suit may be regarded as 

thing more than a mere coUateral or in- said that ** having elected to sue jointly, 

cidental dispute or question of fact or the court is incapable of distinguishing 

of law. Security Co. v, Pratt, 64 Fed. their case, so far as respects jurisdic- 

Rep. 406. tion, from one in which they were 

In Concord Coal Co. v, Haley, 76 compelled to unite." 

Fed. Rep. 883, the court pronounced it In an Action on an Insoranoe Policy by 

doubtful whether a separable contro- the personal representative of the as- 

versy existed between the plaintiff in sured and one claiming the policy as 

an action accompanied by trustee pro- assignee, there is no separable contro- 

cess under the New Hampshire practice versy between the defendant and either 

and an intervening claimant of the of the plaintiffs. McNulty v. Connecti- 

fund attached by the process. The cut Mut. L. Ins. Co., 46 Fed. Rep. 306. 

trustee or garnishee has no separable A Joint Action by an Ininrer and the 

controversy with the plaintiff. Weeks Aisnred against one whose negligence 

V. Billings, 55 N. H. 371. caused the destruction of the property 

1. In re Stutsman County, 88 Fed. insured is one and indivisible. First 

Rep. 337, a statutory proceeding to col- Presb. Soc. v, Goodrich Transp. Co., 

lect a list of delinquent taxes for vari- 10 Biss. (U. S.) 312. 

ous amounts against many parcels of Action by Teoants in Common. — In 

land and many owners; Pacific R. Re- Rumsey v. Call, 28 Fed. Rep. 769, a 

moval Cases, 115 U. S. i, a proceeding suit to quiet title properly brought 

against many persons to assess local jointly by several tenants in common, 

improvement benefits; the statute in it was held that there was only one 

each of the foregoing cases providing controversy. 

for separate trials. See also Lacka. A Joint Suit by Separate Judgment Cred- 
wanna Coal, etc., Co. v. Bates, 56 Fed. iters to set aside as fraudulent a gen- 
Rep. 740. eral assignment of the debtor, the 

8. Merchants Cotton Press, etc., Co. latter and his assignee being made de- 
tr. Insurance Co. of North America, 151 fen dan ts, shows no separable contra- 
il. S. 384; Peninsular Iron Co. v, versy with either of the plaintiffs. 
Stone, 121 U. S. 633. See also New where the validity of none of the judg- 
Orleans v. Winter, i Wheat. (U. S.) 91, ments is attacked. Reineman v. Ball, 
where Chief Justice Marshall, referring 33 Fed. Rep. 692. 

to what had been decided in Straw- 3. Hazard v, Robinson, 21 Fed. Rep, 

bridge V. Curtiss, 3 Cranch (U. S.) 267, 195. 

220 Volume XVIII. 



From State REMOVAL OF CA USES, to Federal Conrte. 

severable at the time when the removal was effected.* 

(b) Testa Applied to Yarions Claseei of Stdta — aa. Eminent Domain and 
Local A ssEssMENT Proceedings. — A proceeding to condemn land for 
a local improvement or other public purpose, either with or 
without an assessment of benefits therefor, where there are 
several and distinct lots owned by different persons, presents a 
separable controversy with each of the owners;* but not where 
there is only one tract, though several defendants have distinct 
interests therein and might be entitled to separate awards of 
damages,' nor where the primary question is the right to make 
the improvement for which it is sought to condemn the land,* 
nor where the rule of assessment makes a just assessment in an 
individual case impossible without having as parties all other 
lot owners involved.* 

bb. Creditors* Bills and Suits Involving Priority of Liens. — A cred- 
itor's bill to subject encumbered property to the payment of the 

1. Guarantee Co. v, •Mechanics' forever, and that the lessor filed a dis- 
Sav. Bank, etc., Co., 80 Fed. Rep. claimer of all interest in the property, 
771, which was a sait by a bank did not create a separable controversy, 
against its teller and a guaranty com- since " the plaintiff * * * was not 
paay on a joint and several bond, re- bound to accept the disclaimer, or if 
moved by the guaranty company with- it did, was entitled to a judgment re- 
out objection, the plaintiff taking a specting the costs and passing upon the 
separate judgment against it without effect of the disclaimer." To the main 
any motion to remand, and virtually point see also Le Mars v. Iowa Falls, 
submitting to a dismissal of the suit as etc., R. Co., 48 Fed. Rep. 66r, 4 Mc- 
to the other defendant upon a demur- Crary (U. S.) 218. Compare Northern 
rer for want of equity. Pac. Terminal Co. v. Lowenberg, 18 

2. Pacific R. Removal Cases, 115 U. Fed. Rep. 339, 9 Sawy. (U. S.) 348, de- 
S. I; Chicago v. Hutchinson, 15 Fed. cided before the limitations of the sep- 
Rep. 129, II Biss. (U. S.) 484; Sugar arable controversy clause had been 
Creek, etc., R. Co. v, McKell, 75 Fed, thoroughly developed by the Supreme 
Rep. 34, upon the ground that what- Court. 

ever judgment the court should enter 4. In r^ Jarnecke Ditch, 69 Fed. Rep. 

as to the tract of land owned by one 161, a proceeding to condemn land for 

would in no wise affect the rights and the construction of a drain and assess 

interests of the owner of another tract; the benefits, where the court said: 

distinguishing Beliaire v. Baltimore, " Whether a removal could be had if 

etc., R. Co., 146 U. S. 117, cited in the the sole issue presented by the remon- 

following note. See also New York, strants was the amount of the assess- 

etc., R. Co, V, Cockcroft, 46 Fed. Rep. ments it is not necessary to determine. 

881. But see Brooks v. Clark, 119 U. S. 

8. Beliaire v, Baltimore, etc., R. Co., 502." 
146 U. S. 117. in which case the court 5. In re Chicago, 64 Fed. Rep. 897, 
held that the fact that the defendants where each assessment required for its 
had distinct interests in the single ascertainment the aggregate of ex- 
tract of land which it was sought to pense to be assessed and the aggregate 
condemn, the interest of one being the value of benefits, and by reason of this 
lease of the whole lot and the interest factor^iV/i»^»iV^i»^ Pacific R. Removal 
of the other being the reversion of the Cases, 115 U. S. i, where, under the 
whole lot, did not introduce a separable provisions of the statute, the assess- 
controversy into the case. This case ment against each parcel of land could 
98^% followed in Washington v. Colum- be worked out independently, and 
bus, etc., R. Co. 53 Fed. Rep. 673, Chicago v. Hutchinson, 11 Biss. (U. S.) 
which held that the fact that the lease 484, 15 Fed. Rep. 129. The cases were 
was for ninety-nine years, renewable also distinguishable on other ground^ 

231 Volume XVIH. 



From Btato REMOVAL OF CA USES. to Federal CoorU. 

plaintiff's judgment by a sale and a distribution of proceeds 
among lienholders according to their priorities is not a divisible 
suit, and therefore is not removable on the ground of a sepa- 
rable controversy.* And generally a lienholder cannot be sepa- 
rated from the general owner in any controversy concerning the 
title.* 

cc. Bills for Partition and Bills to Quiet Title. — In a Suit for Par- 
tition all the defendants are indispensable parties, and none of 

slated in the opinion in the case first Co., 46 Iowa 454; Flynn s/. Des Moines, 

above cited. etc., R. Co., 63 Iowa 494. 

1. Young V. Parker, 132 U. S. 270; Iigonction Against Frandulexic Grantee. 
Fidelity Ins. Co. v. Huntington, 117 — In Moore v. North River Constr. 
U. S. 280; Graves v. Corbin, 132 U. S. Co., ig Fed. Rep. 803, a creditor sued 
571: Torrence v. Shedd, 144 U. S. 531, his debtor and one to whom the debtor 
where Mr. Justice Gray said. ** This had conveyed real estate in fraud of 
for the following reasons: There is the plaintiff. The relief sought was a 
but a single cause of aciion, the equi- sale of the land and an injunction re- 
table execution of a judgment against straining both defendants from dispos- 
the property of the judgment debtor, ing of it. No judgment was asked 
and this cause of action is not divisi- against the (lebtor, but it was held that 
ble. The judgment sought against (he he had no removable separable coniro- 
incumbrancer is incidental to the main versy with the plaintiff, 
purpose of the suit, and the fact that 2. Steinkuhl v. York, 2 Flipp. (U. S.) 
this incident relates to him alone does 382. In Bissell v, Canada, etc., R. 
not separate this part of ihe contro- Co., 39 Fed, Rep. 225, Woods, J., said: 
versy from the rest of the action. '* I suppose it to be unknown to 
What the plaintiff wants is not partial practice, and not permissible, that lien- 
relicf, settling his rights in the prop- holders whose claims remain unadju- 
erly as against this defendant alone, dicated as against the debtor shall 
but a complete decree, which will give bring one another into court, in an 
him a sale of the entire property, free action to which the debtor is not made 
of all incumbrances, and a division of a party, merely to settle a question of 
the proceeds as the adjusted equities priority; and, this being so, it cannot 
of each and all the parties shall re- well be contended that, all the parties 
quire. The answer of this defendant being in court under a bill to establish 
shows the questions that will arise un- and enforce the complainant's lien, 
der this branch of the one controversy, one of the defendants can claim to 
but it does not create another contro- have in such action a separable contro- 
versy. The remedy which the plain- versy in respect to that which he could 
tiff seeks requires the presence of all not have litigated in an independent 



y t 



the defendants, and the settlement, action.' 

not of one only, but of all the branches Where the sole object of the suit was 

of the case." In the same category to establish the right of the plaintiff as 

are TurnbuU Wagon Co. v. Linlhicum receiver to enforce a trust in behalf of 

Carriage Co., 80 Fed. Rep. 4; Sweeney creditors which was expressly imposed 

V. Grand Island, etc., R. Co., 61 Fed. upon property which he alleged to be 

Rep. 4; Marsh v. Atlanta, etc., R. Co., in the possession and control of the de- 

53 Fed. Rep. 168; /;/ r<r San Antonio, fendants, and there was only one defi- 

etc, R. Co., 44 Fed. Rep. 145; Bissell nite equity as a ground for relief, it 

V. Canada, etc., R. Co., 39 Fed. Rep. was held that the suit was indivisible. 

225, where the court said: " The con- Long v. Buford, 24 Fed. Rep. 241. 

troversy here claimed to be separable A Suit by a Subcontractor to Enforce a 

is simply a question of priority of liens Xechanics* Lien against the contractor 

and is determinable as an incident to and the owner of the property was held 

the issues tendered," etc.; Pollok v. not to present a separable controversy 

Louchheim, ig Fed. Rep. 465; Dono- between the plaintiff and the owner, 

hue V. Mariposa Land, etc., Co., 5 Ames v. Chicago, etc., R. Co., 39 Fed. 

Sawy. (U. S.) 163; Darst v. Bates, 51 Rep. 881. 

111. 439; Burch V, Davenport, etc., R. Foreolosnre Baits. — See infra, p. 225. 

22d Volume XVIII. 



InBi Steta REMOVAL OF CA USES. to Pederal ConrU. 

them can claim a separable controversy with the plaintiff.* 

BUli to (toiet Title. — It is possible that separable controversies 
may exist in a suit against several defendants to quiet title to 
real estate, especially where the defendants claim by independ- 
ent tides.* But it is doubtful whether one of several defendants 

who are tenants in common can remove the suit.^ 

1. Haorick v, Haartck, 153 U. S. defendant to set up any claim or right 

iqS. See also De La Vega v. League, 64 he may have, or be forever barred from 

Tex. 205; Stark v. Carroll, 66 Tex. 393. so doing, and framed for the purpose 

la a bill for partition of lands in of including in one suit as many sep- 

IlUnois the principal object of which arable controversies as the defendants 

was to assign to all the tenants in com- may be able to assert, was held to 

moQ their shares in severalty, one de- present separable controversies in 

fendant claimed an equitable estate in Bacon v. Felt, 38 Fed. Rep. 870, where 

whatever should be setoff to the plain- the court pointed out that a decree bar* 

tifif, and the other defendants denied ring the right of one defendant in the 

that the plaintiff had any title whatso- portion of the property claimed by him 

ever. It was held that the controversy would not settle the controversy be- 

of the plaintiff with the first-mentioned tween the plaintiff and another defend- 

defendant was merely incidental to ant claiming a different portion of the 

the main object of the suit, could not property. See also for a similar case 

bedeteroiined as between them with- held removable, Stanbrough v. Cook, 

out the presence of the other defend- 38 Fed. Rep. 369. 

ants, and did not constitute such a In Sieinkuhl v. York. 2 Flipp. (U. S.) 

separate controversy as would justify 379, it was held that in determining 

A reiP'*val. Torrence t. Shedd, 144 whether there is a separable contro- 

U. S. 527, where the court said: " By versy between the plaintiff and any of 

the laiv of Illinois, indeed, the court the defendants in a bill to quiet title, 

mififht, in the suit ifor partition, deter- the holder of the lethal title is regarded 

mine all questions of conflicting or con- as an indispensable parly, whether he 

troverted titles to the whole land or to be a mortgagee holding in fee or a 

any share thereof. But the determina- trustee holding it in part. 

tion of such questions of title was in- Frsudalent Grantee and His Tenant. ^ 

cidental to the main object of the suit, In a bill to quiet title against one 

and in order to do complete justice be- alleged to have procured a deed from 

tween all the parties, and avoid further the plaintiff by fraud, joining a tenant 

litigation.'* The court further ob- of the grantee and a grantee of the lat- 

scrved that none 'of the parties to the ter, there is no separable controversy 

alleged s?pai a t.e controversy could re- between the plaintiff and the tenant. 

cover jadfrment setting off to him any Miller v. Sharp, 37 Fed. Rep. 161. 

share In tr.{* land, without establishing 3. In Goodenough v, Warren, 5 

a title, not only as between themselves, Sawy. (U. S.) 494. and Field v, Lowns- 

but also as against all the other de- dale, Deady (U. S.) 288, it was held 

fendants. that a suit to quiet title against tenants 

2. In Des Moines Nav., etc., Co. v, in common might be removed as to one 

Iowa Homestead Co., 123 U. S. 558, of them, but those cases were decided 

the court said that in Homestead Co. before the Supreme Court had de- 

V. Valley R. Co., 17 Wall. (U. S.) 153, veloped the doctrines adverse to re- 

(a case more fully reported and de- movals on this ground. It was held 

scribed in Stryker v. Goodnow. 123 U. that a tenant had no separable contro- 

S. 530 ft seq.)n a bill to quiet title to versy in Stafford v. Twitchell, 33 La. 

several tracts of land, there was a sep- Ann'. 523; Gillespie v. Twitchell. 34 

arate and distinct controversy between La. Ann. 288. See also Rumsey v, 

the plaintiff and each of the defendants Call, 28 Fed. Rep. 769. 

in relation to the several tracts claimed A Suit under the lUinoiB Btirnt Becords 

by each defendant individually, and Act, to perfect and establish title 

not as joint owners with the other de- against several claimants, was held 

fendants. See also Connell v. Smiley, not to make a separable controversy 

156 U. S. 340. with any of the defendants. Carraher 

A bill to quiet title requiring each v. Brennan, 7 Biss. (U. S.) 497. 

223 Volume XVIII. 



Arom State REMOVAL OF CA USES, to Fadena Oouti. 

dd. Suits Against Partners or Involving Partnership Affairs — Aotionft 
at Law. — There is no separable controversy in an action against 
partners on a joint contract * nor in an action against them for 
a joint tort.* 

In Suits in Equity by one partner where the main object is to 
settle the partnership affairs there is no separable controversy.* 

ee. Suits Relating to Wills and Administration — Snita and Frooeedings 
Relating to Willi. — In a will contest in the probate court,* or in 
a statutory suit to establish a will * or to contest a will,* or in a 
suit by an executor against several beneficiaries claiming conflict- 
ing interests under the will to obtain a construction of the instru- 
ment,^ there can be no separate controversy between the plaintiff 
and any of the defendants. 

Administration Soito and Prooeedings. — Proceedings in the probate 
court to obtain an order of sale of a decedent's lands,** or pro_ 

1. Brooks V, Clark, 119 U. S. 502; ship, and fully determined by itself." 
Stone V, South Carolina, 117 U. S. 433; Shainwald v. Lewis, 108 U. S. 158. 
Fletcher v, Hamlet, 116 U. S. 410; In a Salt by the Administrator of a 
Putnam v. Ingraham, 114 U. S. 59; Deceased Partner agaiost the surviving 
Hyde v. Ruble, 104 U. S. 407; Patchin partner and others claiming an interest 
V. Hunter, 38 Fed. Rep. 51, an action in the partneiship real estate, to reach 
on a partnership note; Woodrum v, all of the partnership assets and have 
Clay, 33 Fed. Rep. 897; Fuszr. Trager, a complete and final accounting and 
38 La. Ann. 173. settlement thereof, the surviving part- 

2. Blum V, Thomas. 60 Tex. 159. ner cannot claim a separable contro- 
8. Levy v, O'Neil, (C. PL Spec. T.) versy with himself. Golden v. Brun- 

14 Abb. Pr. N. S. (N. Y.) 63, a suit by ing, 72 Fed. Rep. 2. 

one partner against his copartners for 4. In Frascr v. Jennison, 106 U. S. 

accounting and settlement. 191. the subject in controversy was the 

Bill by Partners Against Copartners and probate of a will, which was offered 

Others. — In a bill by a partner against for probate by the executors therein 

a copartner and another to have cer- named, who were citizens of Michigan, 

tain property adjudged to be partner- the contestants being the heirs at law, 

ship property and lo obtain a decree part of whom were citizens of Michi- 

liquidating the affairs of the partner- gan and part citizens of other states, 

ship there were no separable contro- The latter petitioned for removal, but 

versies. Yearian v. Horner, 36 Fed. it was held that the case did not pre- 

Rep. 130. sent separate and distinct controversies 

In a suit brought by one partner for within the meaning of the removal act; 

a settlement of the partnership affairs, that the suit embraced but one contro- 

a judgment creditor of the defendant versy and in that all the heirs at law 

and a receiver appointed in a suit upon were interested. 

the judgment were admitted as defend- S.Anderson v. Appleton, 32 Fed. 
ants, and it was held that there was no Rep. 855, a suit under the provision of 
separable controversy between them the New York Code Civ. Pro., § 1866. 
and the plaintiff which would entitle 6. Reed v. Reed, 31 Fed. Rep. 49, an 
them to remove the case, the court say- action under the Ohio statute to con- 
ing: ** The main dispute is about the test a probated will, holding also that 
existence of the partnership. All the those whom the statute requires to be 
other questions in the case are depend- made defendants must be regarded as 
ent on that If the partnership is necessary parties, 
established, the rights of the defend. 7. Security Co. v, Pratt, 64 Fed. 
ants are to be settled in one way; if Rep. 405, 65 Conn. x6i. 
not, in another. There is no contro- S. In a proceeding 10 the probate 
versy in the case now which can be court by the personal representative of 
aeparated from that about the partner- a decedent to obtain a license to aell 

324 Volume XVIII, 



fnm State REMO VAL OF CA USES. to Federal Govtib 

ceedings on exceptions to a trustee's accounti^ ot a proceeding 
by a widow claiming community property * or to have an allow- 
ance for present support set apart to her under the state statute,' 
or an administrator's suit to marshal assets,^ cannot be separated 
into parts so as to be removable by less than the whole number 
of defendants. 

ff. Foreclosure Suits. — In suits for foreclosure and sale against 
the mortgagor and one claiming title adversely to the plaintiff,* 
and in suits against the mortgagor and other incumbrancers ^ or 

real estate for the payment of debts, estate of a deceased person, a single 

requiring an adjudication of the pri- creditor or legatee who may chance to 

oriiy of liens, and provision for charg- livre in another state, by coming in and 

ing them upon the fund, there is no making himself or herself a defendant 

separable controversy between a par- to the bill, can in this way transfer the 

ticular Uenholder and the personal rep- whole litigation from the state court to 

resentadve. Connecticut v, Adams, 6 the federal court." Peters v. Peters, 

Ohio Cir. Dec. 46, 2 Ohio Dec. 119. 41 Ga. 250. For similar views in re- 

1. Where several beneficiaries in a spect of claims against the insolvent 
testamentary trust file exceptions to estate of a decedent, see Du Vivier v. 
the account of the trustee in the Hopkins, 116 Mass. 127. 

Orphans' Court, the presence of all is 6. Hax v. Caspar, 31 Fed. Rep. 499; 

essential to complete relief, since the Thompson r. Dixon, 28 Fed. Rep. 5. 

object of the proceeding is the preser- 6. **A bill for the foreclosure of a 

vation and doe administration of the mortgage which asks for a decree for 

trast estate, and there is no separable the amount of the mortgage debt and 

controversy between any except ant and the sale of the mortgaged premises to 

the trustee. In re McClean, 26 Fed. satisfy the same, and alleges that the 

Rep. 49. lien of the complainants' mortgage is 

2. A proceeding in the probate court prior and superior to the liens of some 
by a widow to have the question de- of the defendants named in the bill, 
termined whether the property of her presents but a single cause of action." 
deceased husband is separate or com- Thurber v. Miller, 67 Fed. Rep. 373, 
manity property makes no separable where the court also said: " The 
controversy with any of the dis- ascertainment of the relative rank of 
tributees. In re Foley, 80 Fed. Rep. the liens is incidental to the main pcr- 
949. pose of the suit." See also Robbins v. 

S. McEImarray v. Loomis, 31 Fed. Ellenbogen, 71 Fed. Rep. 4. And see 

Rep. 396, where the point was not ex- Sweeney t*. Grand Island, etc., R. Co., 

pressly ruled In judgment, but Speer, 61 Fed. Rep. 4; Springer zr. Sheets, 115 

J., said: *' The application of the N. Car. 370. 

widow for a year's support is a mere In a foreclosure suit the controversy 

incideot of the administration, and it is not separable as between the owners 

is oot to be expected that this will be of the equity, the trustee in the trust 

segregated from all the other matters deed, and subsequent incumbrancers 

in the management of estates pending or lienors. Maher v. Tower Hotel 

in the local courts, and carried to the Co., 94 Fed. Rep. 225. C?/»/ar^ Osgood 

United otates court." v, Chicago, etc., R. Co., 6 Biss. (U. S.) 

1 Where an administrator fiLs a bill 330. 
to marshal assets of :in ins. 1 vent de- Validity of Mortgage Ditputed. — In a 

cedent's estate, a nonresident creditor foreclosure suit against the mortgagor 

has no separable part in the case so as and a subsequent incumbrancer the 

to enable him to remove It. Burts v, latter has no separable controversy 

^yd, 45 Ga. 105. See also Bliss r. with the plaintiff, though the validity 

Ravson, 43 Ga. 181. of the mortgage be in dispute. Dono- 

" It could never have been the In- hue v, Mariposa Land, etc., Co., 5 

teniion of Congress that in case of a Sawy. (U. S.) 163. Contra^ in some of 

Inll filed by an administrator against the earlier cases. Capital City Bank 

numerous legatees and creditors, for v. Hodgin, 22 Fed. Rep. 209; Snow sr. 

direction in the administration of the Texas Trunk R. Co., 16 Fed. Rep. 1, 

18 Encyc. PI. & Pr. — 15 235 Volume XVIII. 



Wnm State REMOVAL OF CA USES. to Federal Courts. 

parties claiming some interest/ or in a foreclosure suit against 
the mortgagor and his grantee wherein the plaintiff seeks a 
money decree against the mortgagor for a balance of the mort- 
gage debt,* or one wherein the mortgagor's liability for the 
debt is to be saved and the value of the mortgaged property 
applied in payment to be conclusively settled against him,' there 
is no separable controversy between the plaintiff and either of 
the defendants. 

gg. Taxpayers' and Stockholders* Suits. — In suits by taxpayers to 
restrain Unlawful tax levies where the creditors of the munici- 
pality are joined as defendants, there is rarely any separable 
controversy.* 

4 Woods (U. S.) 394; Rich v. Gross, 99 mortgagor will be discharged from all 

Neb. 337; Burnham v. Chicago, etc., liability unless he is made a party to 

R. Co., 4 Dill. (U. S.) 507. See also the foreclosure suit, there can be no 

Foster v, Chesapeake, etc., R. Co., 47 separable controversy between the 

Fed. Rep. 376. plainti£f and the mortgagor's grantee. 

1. Merchants* Nat. Bank r. Thomp- Coney ». Winchell, 116 U. S. 227, 
son, 4 Fed. Rep. 876, a suit against the where the court said that the plaintiff 
mortgagor and a purchaser of part of ** has but a single cause of action and 
the mortgaged property; Shaver v, that his mortgage.'* 

Hardin, 30 Fed. Rep. 801; Maish v. 4. Taxpayers' Suits. — Brown v. 

Bird. 48 Fed. Rep. 607, where the de- Trousdale, 138 U. S. 389, was a class 

fendant thus joined filed a cross-bill suit by taxpayers against a county 

alleging tlfat the mortgage was fraud- sheriff, county court judge, and all the 

ulent and praying that it be set aside; holders of an issue of municipal aid 

Darst V. Bales, 51 111. 439; Flynn v, bonds, for the purpose of restraining 

Des Moines, etc., R. Co., 63 Iowa 494; the levy of a particular tax to pay in- 

Burch V, Davenport, etc., R. Co., 46 terest, and all future levies in the 

Iowa 454; Connecticut v, Adams, 6 premises, and to have all the bonds 

Ohio Cir. Dec. 46, 2 Ohio Dec. 119; declared invalid. It was held that 

Northwestern, etc., Hypotheek Bank individual nonresident bondholders 

V, Suksdorf, 15 Wash. 475. had no separable controversy with the 

2. In Ayres v. Wiswall, 112 U. S. plaintiffs. " The plaintiffs were not 
187, it was decided that in a suit for prosecuting an action against indi« 
the foreclosure of a mortgage by sale, vidual bondholders for the cancellation 
in which it was sought to charge the of individual bonds. They were at- 
mortgage debtor with the payment of tacking the validity of the entire sub- 
any balance of the mortgage debt that scription and seeking a decree which 
might remain due after the security would invalidate the entire issue." 
was exhausted, the debtor was a neces- See also Anderson v. Bowers, 40 Fed. 
sary party, and that if his citizenship Rep. 708, a similar case, where the 
stood in the way the suit could not be court said: '* The decision of the one 
removed even though, were he not a question of the validity of the bonds 
party, the persons with whom he had * * * decides alike the question 
been joined and to whom he had con- whether the county officials should be 
veyed the property after the mortgage restrained from collecting the tax and 
would be entitled to a removal. See the question whether the bonds shall 
also Lewis v. Weidenfeld, 76 Fed. Rep. be decreed to be void." But the court 
145. also held that the case would have been 

3. In a suit for strict foreclosure of removable by nonresident bondholders 
a mortgage, the mortgagor and his if the record had shown that the plain- 
grantee being made defendants, where tiff's controversy with them related to 
by the state statute the plaintiff may the validity of an entirely different 
have in the same suit an appraisal of issue or series of bonds from that held 
the propeny which will be conclusive by the resident bondholders. The 
upon the mortgagor in a future action order remanding the cause was ap- 
against him for a deficiency, but the proved by the state court in subsequent 

226 Volume XVIII. 



fcm itatt REMOVAL OF CA USES. to ?ed«na Oonrti. 

BtooUioUten' Mts against the corporation and others involving the 
validity of issues of stock, or to compel transfers of stock, can- 
not usually be removed by one defendant alone. ^ 

kk. MiscBLLANEous SuiTs IN EQUITY. — The qucstion whether a suit 
in equity involves several and separate controversies so as to 
authorize its removal by less than all of the defendants is to be 
determined largely by the general rules of equity practice 
in respect of necessary parties,* which have been discussed in 
another part of this work.' In some cases the question is 

proceeding's in the same case. Ander- ownership of shares of stocic and ob- 

son V. Orient F. Ins. Co., 88 Iowa 588. tain a decree for their transfer to the 

Where the object of a taxpayer's bill pi intiff there is no separable contro« 
was to restrain county officials from versy betw«^jn the defendant s^ock- 
erecting a court house and a contractor holder and the plaintifiF. Rogers tr. 
from executing his contract to build it. Van Nortwick, 45 Fed. Rep. 513. 
there was held to be no separable con- A suit against a corporati-^n to com- 
troversy with the contractor, since in pel it to cancel shares of stock issued 
order to make the injunction effective to another defendant who has trans- 
it should operate against both defend- ferred them to a third defendant, and 
ants, whose presence was therefore to compel the corporation to issue cer* 
essential to complete relief for the tidcates of the stock to the plaintiff 
plaintiff. Compare Aroma Tp. v, contains no separable controversy be- 
Auditor of Public Accounts, 9 Biss. tween the plaintiff and the transferee 
(U. S.) 289. of the stock so as to enable the latter 

In a taxpayer's suit to set aside a to remove the cause. Crump r. Thur- 

fraudulent judgment against the city ber, 115 U. S. 56. See also St. Louis, 

and to restrain the levy of a tax, the etc., R. Co. v, Wilson, 114 U. S. 60. 

judgment creditor has no separable 8. "A complicated chancery suit 

coniro^rersy with the plaintiff. May v. may almost necessarily involve in 

St. John. 38 Fed. Rep. 770. some of its collateral issues the rights 

1. Stoekholdert' Suits. — In a suit b^ a and interests of citizens of different 
minority stockholder of a corporation states, but unless the original contro- 
to set aside a lease made by it to an- versy which the suit is brought to de- 
other corporation and to restrain the termine be between citizens of different 
former from carrying into effect a reso- states, or -between such parties as give 
lution of its stockholders authorizing the federal courts jurisdiction, it would 
the payment of money in cancellation hardly seem that Congress intended to 
of the lease, both corporations being provide for the removal thereof, in- 
made defendants, there is no separable asmuch as the whole case must be re- 
controversy with the lessee corporation, moved instead of that collateral branch 
where according to the allegations of or part involvinga controversy between 
the bill the majority stockholders in citizens of different states." Chicago 
both corporations have combined to v. Gage, 6 Biss. (U. S.) 472. 
sacrifice the rights of the plaintiff. In one of the early cases it was said 
East Tennessee, etc., R. Co. v. Gray- that "it is for the good sense of the 
son, 119 U. S. 240, following Central K. court in each case to discover whether 
Co. V. Mills, 113 U. S. 249. there is one distinct and independent 

In a suit by stockholders against the controversy between citizens of differ- 

corporation to have an issue of certain ent states. Merchants' Nau Bank v. 

shares of stock to another corporation Thompson, 4 Fed. Rep. 879. 

declared invalid, an officer of the latter 8. See the article Parties to Actions, 

who holds the stock and is made a vol. 15, p. 584 et sea, 

party has no separable controversy That the general principles of equity 

with the plaintiffs where the only ques- practice are constantly resorted to, see 

tion is the validity and not the owner- Graves v. Corbin, 132 U. S. 586; Golden 

ship of the stock. Sbumway v, Chi- v, Bruning, 72 Fed. Rep. 4; New 

cago, etc., R. Co., 4 Fed. Rep. 385. Jersey Zinc, etc., Co. v. Trotter, 18 

la a suit against a corporation and Fed. Rep. 337; Chester v. Chester, 7 

one of its stockholders to determine the Fed. Rep. 4; Snow v. Smith, 88 Fed. Rep. 

227 Volume XVIIL 



tnm Btoto REMOVAL OF CA USES. to Vadaral Oovrta. 

scarcely distinguishable from the question considered in another 
part of this article^ as to what parties are indispensable in a suit 
containing only a single controversy.* The separability of con- 
troversies has been presented for adjudication in interpleader 
suits,* in suits for cancellation,* in suits relating to trusts * or 
trustees,' in bills for specific performance,* and in bills to set 

657, a salt in eqaity holding that under ation on his part in obtaining the note 

the circumstances tbere was a separable is separale from a controversy with 

controversy. the other defendant involving the ques- 

Seotion 787 of iho XTnited Statof Be- tion whether the latter is a bona fide 

▼ised Btatutos, relating to parties who holder of the paper for value, in due 

may be omitted without prejudice to course of trade and without notice, and 

the federal jurisdiction, which is fully either defendant may remove the suit, 

described in the article Parties to New Yorlc Constr. Co. v. Simon, 53 

Actions, vol. 15, p. 704, is confined in Fed. Rep. i. 

its operation tu suits originally brought In a suit against a mortgagor and 

in the federal courts and cannot be in- mortgagee to cancel the mortgage on 

voiced to aid a petition for removal, the ground of fraud and collusion, 

Ames V, Chicago, etc., R. Co., 39 Fed. there is no separable controversy be- 

Rep. 885; Patchin v. Hunter, 38 Fed. tween the plaintiff and the mortgagee. 

Rep. 51. Oalces v. Yonah Land, etc., Co., 89 

In a Salt to Obtain the Restoration of Fed. Rep. 243. See als Seddon v. 

Stock conveyed to one of the defend- Virginia, etc., Steel, etc., Co., 36 Fed. 

ants by mutual mistalcc and by him to Rep. 6. 

the other defendant with notice, neither 4. Suits Belating to Trusts. — In a suit 

defendant can remove the suit for a to enforce the execution of a trust, 

separable controversy. Vinal v. Con- where f^he existence of the trust is dis- 

tinental Constr. etc., Co., 35 Fed. Rep. puted, and full and complete relief can 

673. not be had withe ut est:\ lishing it, 

1. See supra, p. 197 et seq. there is but a single controversy. 

2. A Bill of Interpleader is of such a Winchester ?/. Loud, 108 U. S. 130. 
nature that a separation of it into parts In Chester v. Chester, 7 Fed. Rep. I, 
necessarily destroys it; hence it can- the suit as described bv the court was 
not be removed by one of the defend- one to establish a fraudulent conspiracy 
ants. Mutur.l L. Ins. Co. v, Allen, 134 through which the plaintiff claimed a 
Mass. 389; George v. Pilcher, 28Gratt. resulting trust in land in possession of 
(Va.) 299. See also Leonard v. Jam:- a mortgagor, t which suit the plaintiff 
son, 2 Edw. (N. Y.) 13^. had pr'^perly made the mortgagee, 

8. Suits for Cancellation. — In suit whom he :harged with notice and par- 

to cancel judgments, the judgment ticipation in the fraud, a defendant. It 

creditor and the alleged assigne>^ of the was held I'.at the controversy with the 

judgment being joined as defendants, mortgagee was inseparable from that 

neither has a separable controversy with the mortgagor, 

with the plaintiff. Independent Dist. 5 Suit for Eemoval of Trustee. — In 

r. Rock Rapids Banic, 48 Fed. Rep. 2. a suit by a cestui que trust against a 

In a bill by the grantor in a deed of trustee to have him removed and a 

trust to enjoin a sale of the property suitable person appointed in his place, 

and secure a cancellation of the trust the other ^^j/»/.r^f/e-/ri^j/cr»/ being made 

debt, the trustee and the creditor being cedefendants, it seems that there is 

made joint defendants, the trustee is no separ. ble controversy between the 

an indispensable party adverse to the trustee and the plaintiff. Baxter v. 

interest of the plaintiff, and there is Proctor, 139 Mass. 151. 

no separable controversy between the 6. In a Bill f'^r Spooifio Performanoe of 

flaintiff and the creditor. Pepet v, a contract to convey land, brought 

ordyce, 119 U. S.469; Thayer z^. Life against the vend r and his alleged 

Assoc, of America, iia U. S. 717. fraudulent grantee and lessee, there is 

In a suit to cancel a note, a contro- no separable controversy with the 

versy with one defendant involving the vendor. Tyler v, Hagerty, 2 Flipp. (U. 

question of fraud and want of consider- S.) 257. 

228 Volume XVIII. 



ftoB 8Uto RE MO VAL OF CA USES. to Voderal CSonrtt. 

aside fraudulent conveyances.^ 

(o) Baparability, How Determinod — aa. By State of Record at Time op 
Filing Petition — Bule Stated. — The question whether there is a 
separable controversy warranting a removal must be determined 
by the state of the pleadings and the record of the case at the 
time of the application for removal, and not by the allegations 
of the petition therefor or the subsequent proceedings which 
may be had in the federal Circuit Court.* Since the petition for 
removal is now usually filed before plea or answer,* and it is 
well settled that separate defenses do not create separable con- 
troversies,^ the character of the controversy is always deter- 
mined by an inspection of the plaintiff's pleading.* 

Amondment Alter Petition FUed. — After the filing of a sufficient 
petition and bond for removal, the plaintiff cannot defeat a 
removal by amending his pleading and striking out the prayers 
for relief which create the separable controversy.* 

bb. Plaintiff's Pleading Considered as True — (aa) General Rule. — In 
determining whether there is a separable controversy the cause 
of action is, for all the purposes of the suit, whatever the plain- 
tiff declares it to be in his pleadings,'' and the allegations of the 
plaintiff must be accepted as true.^ Thus, a defendant has no 

1. Townsend v, Sykes, 38 La. Ann. ** The case as made by the bill, and 

410, holding ihat a suit against the as it stood at the time of the petition for 

fraudulent grantor and grantee could removal, is the test of the right to re- 

not be removed by the former alone. moval." Graves v. Corbin, 132 U. S. 

8. Wilson V, Osvirego Tp., 151 U. S. 585- 

65; Merchant's Cotton Press, etc., Co. 6. Jones v. Foreman, 66 Ga. 381. 

f. Insurance Co. of North America, 151 7. Torrence v. Shedd, 144 U. S. 530; 

U. S. 384; Louisville, etc., R. Co. v. Mitchell 7/. Smale, 140 U. S. 409; 

Wangelin, 132 U. S. 601; In re Jar- Louisville, etc., R. Co. v. Ide, 114 U. 

necke Ditch, 69 Fed. Rep. 168; Hazard S. 52; Little «/. Giles, 118 U. S. 601; 

V, Robinson, 21 Fed. Rep. 193. Moore v. Los Angeles Iron, etc., Co., 

" The right of removal *  * 89 Fed. Rep. 73; Kane v. Indianapolis, 

depends upon the case disclosed by 82 Fed. Rep. 770. 

the pleadings as they stand when the Thus in Mitchell v, Smale, T40 U. S. 

petition for removal is filed." Barney 409, an action of ejectment, the court 

V. Latham, 103 U. S. 216. was of opinion that one defendant 

8. See infra^ I. 20. a. Terms and could not have a removal upon his al- 

General Purpose and Policy of Removal legation that the other defendants. 

Acts. whom the plaintiff had joined appar- 

4. See 5«<^ra, p. 2i^etseq. ently in good faith, had relinquished 

5. See Winchester v. Loud, 108 U. S. their interest by conveyance before suit 
131; Thorn Wire Hedge Co. v. Fuller, to the defendant seeking removal. 

122 U. S. 535; Deere v. Chicago, etc., 8. Plymouth Gold Min. Co. v. Ama* 

R. Co., 85 Fed. Rep. 83i; Ames v. dor, etc.. Canal Co., 118 U. S. 270; 

Chicago, etc., R. Co., 39 Fed. Rep. Deere v. Chicago, etc., R. Co., 85 Fed. 

884; Sexton V. Seelye, 39 Fed. Rep. Rep. 88t; Warax v. Cincinnati, etc., 

705. R. Co., 72 Fed. Rep. 640; Arrowsmith 

** The existence or nonexistence of a v. Nashville, etc., R. Co., 57 Fed. Rep. 

separable controversy must in every 165; Rivers v. Bradley, 53 Fed. Rep. 

case be tested by the inquiry whether 305; Wilder v. Virginia, etc., Steel, 

the declaration or complaint discloses etc., Co.. 46 Fed. Rep. 682: Dow v, 

more than one cause of action.*' Mu- Bradstreet Co., 46 Fed. Rep. 825; Kai- 

tual Reserve Fund L. Assoc, v. tel z/. Wylie. 38 Fed. Rep. 865; Western 

Farmer, 77 Fed. Rep. 932. Union Tel. Co. v. Griffith, 104 Ga. 56; 

229 Volume XVIII. 



Ttm 8teto REMOVAL OF CA USES. to Vadaral Courts. 

right to say that an action which a plaintiff elects to make joint 
shall be several.^ 

(W) Exception to RuU, — There is a line of decisions in the federal 
Circuit Courts holding that when several defendants are sued 
jointly and the plaintiff's declaration or complaint shows affirma- 
tively that the liability, if any, is several and not joint, either 
defendant may properly claim that there is a separable contro- 
versy between himself and the plaintiff.* 

Applied to actions of tort against master and servant, the 
doctrine is that when a declaration or complaint shows that the 
liability of the master is for a negligent or wrongful act of his 
ser\'ant, solely upon the ground of the relationship between 

National Docks, etc., R. Co. v. Penn- trial. It could not be tried and deter- 

sylvania R. Co., 52 N. J. £q. 65; mined in advance as incidental to a 

Springer v. Sheets, 115 N. Car. 381. petition by a codefeadant to remove 

'* The rights of the parties must be the case." 

ascertained and measured by an analy- 1. Carr v. Kansas City, 87 Fed. Rep. 

sis of the bill of complaint." Vinal r. i; Wilder r. Virginia, etc.. Steel, etc.. 

Continental Constr., etc., Co., 35 Fed. Co., 46 Fed. Rep. 682; Arrowsmith v. 

Rep. 673 Nashville, etc., R. Co., 57 Fed. Rep. 

In East Tennessee, etc., R. Co. v, 165; Ames v. Chicago, etc., R. Co., 39 
Grayson, 119 U. S. 244, a suit in equity Fed. Rep. 883; Sexton v. Seelye, 39 
against two corporations, the question Fed. Rep. 705: Vinal v. Continental 
was whether there was a separable Constr., etc., Co., 35 Fed. Rep. 673; 
controversy between one of them and Woodrum i^. Clay, 33 Fed. Rep. 898; 
the plaintiff which would warrant a Chapman z/. Chapman, 28 Fed. Rep. 
removal, and it was held that the i; Ax/. Andrews, 40 Ala. 639; West- 
allegations of the bill must for the pur- ern Union Tel. Co. v, Griffith. 104 Ga. 
poses of that inquiry be taken as con- 56; Gudger v. Western North Carolina 
fessed. R. Co., 87 N. Car. 325; 0*Kelly v. 

In Louisville, etc., R. Co. v. Wange- Richmond, etc., R. Co., 89 N. Car. 58. 

lin, 132 U. S. 603, the declaration " In any case where the plaintiff may 

charged two corporations with having elect to sue jointly or severally, if he 

joindy trespassed on the plaintiff's elects to sue jointly, so far as respects 

lands, and it was held that one of the jurisdiction, the case must be treated 

defendants could not remove the case the same as though the cause of action 

upon an allegation in its petition that was joint." Kane v. Indianapolis, 82 

it was the only real defendant and that Fed. Rep. 772. 

at the time of the trespass complained '* The cause of action alleged in the 

of the other defendant was not in exist- plaintiff's pleading must be accepted as 

ence. The court said: " This was a the only criterion of decision, and 

matter affecting the merits of the case, * * * if it is there alleged that the 

and one which the plaintiff was entitled wrong was committed by all the de- 

to deny and disprove at the trial upon fendants jointly, or that the cause of 

the issues joined by the pleadings, action is joint, the suit is not remov- 

Boih the defendants were sued and able." National Docks, etc., R. Co. v. 

served as corporations, and pleaded as Pennsylvania R. Co., 52 N. J. Eq. 65. 

such in the state court; and it is not A Beplevin Suit against an alleged 

denied that each of them was a corpo- fraudulent vendee, the purchaser at an 

ration when the action was brought, execution sale against the latter, and 

The question whether one of them was the sheriff executing the process, does 

in existence as a corporation at the not upon the face of the record show a 

time of the alleged trespass did not separable controversy with any of the 

affect the question whether it could be defendants. Winnemans v, Edging- 

now sued, but the question of its Ha- ton, 27 Fed. Rep. 324. 

billty in the action; in other words. 2. Such is the doctrine of those cases 

not the jurisdiction, but the merits, to as stated in Creagh v. Equitable L. 

be determined when the case came to Assur. Soc., 88 Fed. Rep. 3. 

280 Volume XVIII. 



Wnm tteto REMOVAL OF CA USES. to ?0deral Ckrarta 

them and the application of the rule of respondeat superior^ and 
not by reason of any personal participation in the negligent or 
wrongful act, he is liable severally, and not jointly, with the 
servant, and either may remove the suit on the ground of a sepa- 
rable controversy.* As applied to that class of cases, the sound- 
ness of the doctrine has not been expressly adjudged by the 
United States Supreme Court.* If the petitioner for removal is 

1. The rale was applied in: whether the master and the servant 

Sixth Circuit — Warax v. Cincinnati, can be joined as the perpetrators of a 

etc., R. Co., 73 Fed. Rep. 647; Hukill V. joint tort, for the injury inflicted by 

Maysville, etc., R. Co., 72 Fed. Rep. the negligence of ihe servant, without 

753;Landers V. Felton, 73Fed. Rep. 311. the presence of the master, and with* 

Compare Powers v, Chesapealce. etc., R. out his express direction, is one upon 

Co., 65 Fed. Rep. 129, and Hukill v. which the authorities do not agree. 

Chesapealce, etc., R. Co., 65 Fed. Rep. The affirmative of the proposition is 

138, explained in the two cases first supported by the cases of Wright v, 

above cited. Wilcox, 19 Wend. (N. Y.) 343; Suydam 

Seventh Circuit. — Gableman v, Peo- v. Moore, 8 Barb. (N. Y.) 358; Mont- 

ria, etc., R. Co., 82 Fed. Rep. 790. fort v. Hughes, 3 E. D. Smith (N. Y.) 

Eighth Circuit, — Beuttel z/. Chicago, 591; Phelps v. Wait, 30 N. Y. 78; 

etc., R. Co., 26 Fed. Rep. 50, an action Wright v. Compton, 53 Ind. 337; 

against the master and the fellow serv- Greenberg v. Whitcomb Lumber Co., 90 

ant of the plaintiff; Fergason v, Chi- Wis. 225; Newman v. Fowler, 37 N. J. 

cago, etc., R. Co., 63 Fed. Rep. 177, a L. 89. It is contended that the case of 

similar case; Hartshorn v, Atchison, Martin v. Louisville, etc.. R. Co., 95 

etc., R. Co., 77 Fed. Rep. 9. Ky. 612, is also an authority in support 

The TiiMMUng Case upholding this doc- of this contention. An examination 

trine is Warax v. Cincinnati R. Co., 72 of the case, however, will show that 

Fed. Rep. 637, commonly called the the question was not decided.    

Warax Case, which was an action by a The cases which support the view that 

servant against his master and a fellow the master cannot be joined as defend- 

servant, wherein Taft, J., delivered an ant in the action against his servant 

opinion of characteristic ability. The for negligence, where the master is not 

opinion is carefully examined and the personally concerned in the negli- 

case distinguished in Deere v, Chicago, gence, either by his presence or ex- 

etc., R. Co., 85 Fed. Rep. 876 \fol- press direction, are as follows: Par- 

lowing Plymouth Gold Min. Co. v. sons v. Winchell, 5 Cush. (Mass.) 592; 

Amador, etc., Canal Co., 118 U.S. 264), Mulchey v. Methodist Religious Soc, 

wherein it was held that theie was no 125 Mass. 487; Clark v. Fry, 8 Ohio 

separable controversy, since each of St. 377; Seelen v. Ryan, 2 Cine. Super, 

the defendants was charged with a Ct. 158; Campbell v. Portland Sugar 

primary liability, and not with a liabil- Co., 62 Me. 553; Beuttel v. Chicago, 

ity based upon the doctrine of respond- etc., R. Co., 26 Fed. Rep. 50; Page v. 

eat superior. Parker, 40 N. H. 68; Bailey v. Bus- 

Common-law and Statutory Liability sing, 37 Conn. 351.'' He then proceeds 

Joiaed. — Where an alleged purely stat- to demonstrate that the cases last cited 

utory liability of a railway company take the correct view of the question, 
to a servant for the negligence of a co- Freoedent of Semoval PeUtion. — See 

servant is joined with an asserted com- the petition for removal set forth in 

mon-law liability of the coservant for Deere v. Chicago, etc., R. Co., 85 Fed. 

his own personal negligence, separable Rep. 878, containing allegations of 

controversies are presented. Beuttel facts tending to show that the alleged 

V. Chicago, etc., R. Co., 26 Fed. Rep. 50. liability was sereral and not joint. 

Ol^er Ooniiderations Involved. — The 2. In Powers t^. Chesapeake, etc., R. 

doctrine stated in the text rests upon Co., 169 U. S. 92, Mr. Justice Gray 

the hypothesis that such causes of ac- said that' the Circuit Court for the sixth 

tion cannot be joined. In Warax v. circuit, " upon a review of conflicting 

Cincinnati, etc., R. Co., 72 Fed. Rep. authorities, and referring to the dis- 

641, Taft, J., said: " The question tinction taken under the old system of 

281 Volume XVIII. 



From 8teto RE MO VA L OF CA USES. to Federal Conrtt. 

at liberty to show that codefendants are not liable, and have 
been joined for the fraudulent purpose of preventing a removal,* 
or. in other words, if he may in certain cases secure a removal 
by proving that the plaintiff's allegations of fact are false, it 
would seem reasonable to hold that he may with a like result 
prove to the satisfaction of the court that the plaintiff's allega- 
tions of joint liability are such that the law pronounces them 
false.' In the latter case he raises an issue of law on the face of 
the record, which may as easily be determined in the removal 
proceeding, or on a motion to remand, as at a trial on the merits 
in the state court. 

It appears that the foregoing exception to the rule is not con- 
fined to actions of tort.' 

(4) Removal Carries Entire Suit, — In removals under the Act 
of 1866 and its substantial reproduction in the second subdivision 

special pleading between trespass and mon," they were all engaged in violat- 
trespass on the case, has held that a ing the rights of the plaintiff by their 
master and servant cannot be joined in *' united efiforts.*' In Plymouth Gold 
an action for a tort, and therefore the Min. Co. v. Amador, etc.. Canal Co., 
controversy between each of them and 118 U. S. 270, the alleged tort was 
the plaintiff is a separate controversy." committed by the *' united action of 
Ci/fMt^ Waraxz'. Cincinnati, etc., R. Co., all the defendants working together.'* 
72 Fed. Rep. 637; Hukill v, Maysville, In Sloane v. Anderson, 117 U. S. 277, 
etc., R. Co., 72 Fed. Rep. 745. The the defendants were sued in trespass 
justice, after remarking that in the for the wrongful seizure of the plain- 
earlier case of Powers v. Chesapeake, tiff's properly, the complaint alleging 
etc., R. Co., 65 Fed. Rep. 129, the that the act was done by the united 
same Circuit Court had apparently de- efforts of all the defendants acting in 
cided otherwise, concluded by saying common. Obviously the plea in abate- 
that '* it is unnecessary now to con- ment interposed by each of the defend- 
sider which of the views of the Circuit ants alleging that they were not jointly 
Court upon this question is the correct concerned in the wrongful acts, and 
one.*' Nevertheless, this case, Powers therefore that there was a misjoinder, 
V. Chesapeake, etc., R. Co.. 169 U. S. raised only an issue of fact on the 
92, is actually died, among other Su- plaintiff's allegations and could be de- 
prcme Court cases, in Creagh v. Equi- termined only by evidence, 
table L. Assur. Soc, 88 Fed. Rep. i 1. See supra, p. 202^ 
(ninth circuit), to the proposition that 2. See falsity in fact and falsity in 
the Supreme Court has definitely de- law placed in juxtaposition by Taft, J., 
dared that there is no separable con- in Warax v. Cincinnati, etc., R. Co., 
troversy in such cases. On the 72 Fed. Rep. 640. 

contrary, however, the Supreme Court 8. Chicago, etc., R. Co. v. New 

has carefully kept the question open York, etc., R. Co., 24 Fed. Rep. 516, 

by pointing out in all the cases of tort was a suit against several defendants 

where it held that there was no sepa- to restrain the violation of a contract 

rable controversy, that all of the and for an accounting. The court 

defendants were charged with actual construed the contract to be a several 

participation in the wrongs complained and not a joint undertaking, and sus- 

of. Thus in Pirie v, Tvedt, 115 U. S. 43, tained a removal by one of the defend- 

the action was for malicious prosecu- ants. Wallace, J., said: *' Although a 

lion '* by all the defendants acting in joint accounting is demanded, the lia- 

concert," and *' the plaintiffs might bility of each defendant is several, and 

have sued each defendant separately the complainant cannot convert a con- 

or all jointly." In Starin v. New troversy which is wholly between itself 

York. 115 U. S. 258, the suit was and each of the two defendants into 

against all the defendants jointly, '* on one between itself and both defendants 

the allegation that, acting in com- by treating it as joint in the prayer 

233 Volume XVIII, 



Fhm Steto REMOVAL OF CA USES. to Federal CJourte, 

of section 639 of the United States Revised Statutes,^ only 

the separate controversy of the petitioning defendant could be 
removed, and the plaintiff was allowed to proceed against all the 
other defendants, in the state court, as to the remaining contro- 
versies in the suit, the same as if no removal had been had.* 
Under the Act of 1875* a removal on the ground of a separable 
controversy took the whole suit and left nothing behind for trial 
in the state court;* and under the present law, the Act of 1887- 

for relief. It is only where the cause Homestead Co. v. Des Moines Nav., 

of action is founded upon a joint and etc., Co., 8 Fed. Rep. 102; Chester 

several liability thai a plaintiff may, at v, Chester, 7 Fed. Rep. 6; Monney v, 

his election, proceed against both de- Agnew, 4 Fed. Rep. 8; Sheldon 

fendants jointly, or each severally.** v. Keokuk Northern Line Packet Co., 

1. 14 U. S. Stat, at L. 306, c. 288, i Fed. Rep. 795; Atlantic, etc., Fertil- 

which provided for *' the removal of izing Co. 3^. Carter, 4 Hughes (U. S.) 

the cause as against him,'* the peti- 217, 88 Fed. Rep. 707; Tuedt v, Car- 

tioning defendant; and Rev. Slat. U. son, 4 McCrary (U. S.) 426, 13 Fed. 

^'t § 639, subdiv. 2, providing that Rep. 353; Goodenough v. Warren, 5 

*' such removal shall not take away or Sawy. (U. S.) 497; Arapahoe County 

prejudice the right of the plaintiff to v, Kansas Pac. R. Co., 4 Dill. (U. S.) 

proceed at the same time with the suit 277; Carraher v, Brennan, 7 Biss. (U. 

in the state court as against ihe other S.) 497; Stapleton v, Reynolds, 16 Am. 

defendants.'* L. Reg. N. S. 48; Osgood v. Chicago, 

8. Brooks v. Clark, 119 U. S. 502, etc., R. Co., 6 Biss. (U. S.) 330; Chi- 

whcre the court said the removal had cago v. Gage, 6 Biss. (U. S ) 472; 

theeffeciofmaking two suits out of one; Burch v. Davenport, etc., R. Co., 46 

King V. Cornell, 106 U. S. 396; Barney Iowa 454; Stafford v. Twitchell, 33 La, 

V. Latham, 103 U. S. 212; Fisk v, Ann. 523; Clark v, Opdyke, 10 Hun 

Union Pac. R. Co., 6 Blatchf. (U. S.) (N. Y.) 383; O'Kelly v. Richmond, 

377; Dart V, McKinney, 9 Blatchf. (V. etc., R. Co., 89 N. Car. 58 [correctinp 

S.) 360; Allen V. Ryerson, 2 Dill. (U. Simmons v, Taylor, 83 N. Car. 148J; 

5)503; McGinnity v. White, 3 Dill. Meyer v. Schining, 55Tex.43i; Feible- 

(U- S.)355; Field v, Lownsdale, Deadv man v. Edmonds, 69 Tex. 334. 

(U.S.) 288; Chambers v. Holland, 11 '* Much confusion and embarrass- 

Fe^* Rep. 210; Missouri v, Tieder- ment, as well as increase in the cost of 

niann, 10 Fed. Rep. 20; Wormser v. litigation, had been found to result 

Dahlman, 16 Blatchf. (U. S.) 319, 57 from the provision in the former act 

How. Pr. (N. Y.) 286; Jones z/. Foreman, [Act of 1866] permitting the separation 

^ Ga. 371; Bliss -z/. Rawson, 43 Ga. of controversies arising in a suit, re- 

'83; Stewart v. Mordecai, 40 Ga. 7; moving some 10 the federal court, and 

^tanbrough v. Griffin, 52 Iowa IT3; leaving others in the state court for 

Slaflford v. Twitchell, 33 La. Ann. determination.** Barney v. Latham, 

523; Simmons v. Taylor, 83 N. Car. 148; 103 U. S. 213. 

George v. Pilcher, 28 Gratt. (Va.) 307. Contra in Early Cases. — It was at first 

See also Hyde v. Ruble, 104 U. S. supposed that the Act of 1875 did not 

^: Vannevar v. Bryani, 21 Wall, repeal Rev. Stat. U. S., § 639, and 

(U.S.) 43. that part of a case could still be re- 

^' 18 U. S. Stat, at L. 471, c. 137, moved. See Wormser v. Dahlman, 16 

§ 2. which provided for a removal of Blatchf. (U. S.) 321, 57 How. Pr. (N. 

" said suit.** Y.) 286; Girardey v. Moore, 3 Woods 

1 Brooks V, Clark, 119 U. S. 512; (U. S.) 397, 5 Cent. L. J. 78. 

Barney v, Latham. 103 U. S. 212; At- Eetention of Part by Consent. — In St. 

ianiic, etc.. Fertilizing Co. v. Carter, Louis, etc., R. Co. v. Ransom, 29 Kan. 

88 Fed. Rep. 707. 4 Hughes (U. S.) 298, one defendant filed a petition for 

2*7; Freidler 7>. Chotard, 19 Fed. Rep. removal on the ground of a separable 

229; Corbin v. Boies, 18 Fed. Rep. 4; controversy expressly, and the court 

Noribern Pac. Terminal Co. v. Lowen- made an order removing the separable 

*^rg, 18 Fed. Rep. 342; HoUister v, part, but not the entire suit. The suit 

fiell, 17 Fed. Rep. 705; Chambers proceeded to judgment in the state 

t'' Holland, 11 Fed. Rep. 209; Iowa court against the remaining defendant, 

238 Volume XVIII. 



From 8teto REMOVAL OF CA USES. to Fodoral GonrU 

1888,^ a removal carries into the federal court the entire original 
suit,* and part of a suit cannot be removed.' But where a pro- 
ceeding consists of several suits so distinct in character that each 
is triable in the state court separately, one may be removed 
without affecting the others.* 

c. Cases Involving Federal Questions — (i) What Con^ 

stitutes Federal Question — (a) In Ooneral. — The Act of 1887- 1888 
provides for the removal of *' any suit of a civil nature, at law or 
in equity, arising under the Constitution or laws of the United 
States, or treaties made, or which shall be made, under their 
authority,*' of which, by the same act, original jurisdiction is 
given to the federal Circuit Court.* Cases of that nature are 
commonly described as involving a'* federal question. " Since 
the jurisdiction of that class of cases is coextensive with the 
original jurisdiction of the Circuit Court, and nearly though not 
quite commensurate with the jurisdiction of the Supreme Court 
by writ of error to the state court in cases of that character, an 
exhaustive discussion of the subject is incompatible with the 
scope and reasonable limits of this article. A case may be con- 
sidered to arise under the Constitution or a law of the United 
States whenever its correct decision depends upon the construc- 
tion of either.* 

who made no objection whatever to ti Fed. Rep. 209; Northern Pac. Ter- 

the jurisdiction. It was held, Brewer, minal Co. v, Lowenberg, 18 Fed. Rep. 

J., writing the opinion, that he thereby 339; Clark v, Chicago, etc., R. Co., 11 

waived his right to go with the remov- Fed. Rep. 355; Mooney v. Agnew, 4 

ing defendant into the federal court. Fed. Rep. 8. 

and that his objection to the validity 4. In Pacific R. Removal Cases, 115 

of the judgment couM not be first U. S. 23, a city instituted proceedings 

raised on appeal. Distinguishing Na- to widen a street, condemn land there- 

tional Steam Ship Co. v. Tugman, 15 for, and assess benefits. From the 

Cent. L. J. 448. award of damages and assessments of 

1. 24 U. S. Stat, at L. 553, c. 373, benefits made by a jury and confirmed 

§2; 25 U. S. Stat, at L. 435, c. 866, by a municipal board, several property 

§ 2, providing for a removal of " said owners took separate appeals to the 

suit." state court, and one of them there- 

3. Connell v. Smiley, 156 U. S. 335; upon removed his controversy to the 

Sharkey v. Port Blakely Mill Co., 92 federal court. It was held that the 

Fed. Rep. 426; Sugar Creek, etc., R. rest of the proceeding in the state 

Co. V. McKell, 75 Fed. Rep. 36: Le court remained there, although it 

Mars V. Iowa Falls, etc., R. Co., 48 might have to await the result in the 

Fed. Rep. 661; Patchin v. Hunter, 38 federal court. See also /« r^ Stutsman 

Fed. Rep. 51; Bacon v. Felt, 38 Fed. County, 88 Fed. Rep. 343, a proceeding 

Rep 873; Insurance Co. of North to collect a list of delinquent taxes 

America v. Delaware Mut. Ins. Co., 50 against various parcels of land with 

Fed. Rep. 257; Bowley v. Richmond, various owners, 

etc., R. Co., no N. Car. 317. 5. 24 U. S. Stat, at L. 553, c. 373, 

It follows that if part of a suit is not §2; 25 U. S. Stat, at L. 434, c. 866, 

removable, because it embraces a § 2. The right of removal upon this 

cause of action of a criminal nature, ground was not given by the Judiciary 

there can be no removal. Texas v. Act of 1789, and the jurisdiction was 

Day Land, etc.. Co., 49 Fed. Rep. 597. first conferred by the Act of 1875, 18 

8. Atlantic, etc.. Fertilizing Co. v, U. S. Stat, at L. 470, c. 137. 

Carter, 88 Fed. Rep. 707, 4 Hughes (U. 6. Cohens v. Virginia, 6 Wheat. (U. 

S.)2[7. See also Chambers V. Holland, S.) 379; Kansas Pac. R. Co. v, Atchi- 

234 Volume XVIII. 



Wnm State REMOVAL OF CA USES. to Federal Georta. 

ffltlMMlilp of Purtiei Immaterial. — When the suit presents a federal 
question, it is removable without regard to the character of the 
parties, and a suit brought by a state or by a plaintiff who is a 



U etc., R. Co.. zza U. S. 416, where 609; Wilder v. Union Nat. Bank, 9 

the conn said: *' The same thing is Biss. (U. S.) 178; Com. V. Louisville 

expressed by the statement that a case Bridfre Co., 42 Fed. Rep. 241; Gay v. 

arises under the Constitution or laws Lyons, 3 Woods (U. S.) 56; Trafton v, 

of the United States whenever the Nougues, 4 Sawy. (U. S.) 179; Austin 

rights set up by a party may be de« r. Gagan, 39 Fed. Rep. 626; Upham v. 

feated by one construction or sustained Scoville, 40 Ark. 170; Illinois Cent. R. 

by the opposite construction." Citing Co. v. Chicago, etc., R. Co., 122 111. 

Osboro V. U. S. Bank, 9 Wheat. (U. S.) 473; Dickinson v. Heeb Brewing Co., 

738. See sdso Tennessee v. Davis, 100 73 Iowa 705; Lemen r. Wagner, 68 

U. S. 257. Iowa 660; Judge v, Arlen, 71 Iowa 

For cases wherein it was held that 186; Drake v. Kaiser, 73 Iowa 703; 

no federal question was involved Drake v, Jordan, 73 Iowa 707; Walker 

within the meaning of the Act of Con- v, Coleman, 55 Kan. 381; Clark v. Op- 

gress, see Hoadley v, San Francisco, dyke, 10 Hun (N. Y.) 383; Lalor 9. 

94. U. S. 4; Metcalf v, Watertown, 128 Dunning, (C. PI. Spec. T.) 56 How. Pr. 

U. S. 586; Gibbs V. Crandall, 120 U. (N. Y.) 209; Setzer v, Douglass, 91 N. 

S. 105; Leather Manufacturers* Bank Car. 426; State r. Southern Pac. R. 

V. Cooper, 120 U. S. 778; Gold- Wash- Co., 23 Oregon 424; McKee v. Coffin, 

ing, etc., Co. v. Keyes, 96 U. S. 109; 66 Tex. 304; Galveston, etc., R. Co. v. 

Chicago, etc., R. Co. v. Wiggms State, (Tex. Civ. App. 1896) 36 S. W. 

Ferry Co., 108 U. S. 18; Central R. Rep. iii; Houston, etc., R. Co. v, 

Co. V, Mills, 113 U. S. 249; Starin State, (Tex. Civ. App. 1897) 41 S. W. 

V, New York, 115 U. S. 248; Ger- Rep. 157. 

mania Ins. Co. v. Wisconsin, 119 U. S. For cases holding that a federal 

473; Prescott V, Haughey, 65 Fed. question was involved see Mitchell v. 

Rep. 653; Fitzgerald v. Missouri Pac. Smale, 140 U. S. 406; Bock t*. Perkins, 

R. Co., 45 Fed. Rep. 812; Kenyon v, 139 U. S. 628; Tennessee v. Whit- 

Knipe, 46 Fed. Rep. 309; Hoyt v, worth, 117 U. S. 129; Feibelman v. 

Bates, 81 Fed. Rep. 641; In re Helena, Packard, [09 U. S. 421; Coosaw Min. 

etc.. Smelting, etc., Co., 48 Fed. Rep. Co. v. South Carolina, 144 U. S. 550; 

609; State V, Columbus, etc., R. Co., Crawford v, Hubbell, 89 Fed. Rep. i; 

48 Fed. Rep. 626; Johnson v. Wells, 91 People v. Rock Island, etc., R. Co., 71 

Fed. Rep. i; Lincoln v, Lincoln St. R. Fed. Rep. 753; Auburn Sav. Bank v. 

Co., 77 Fed. Rep. 658; Argonaut Min. Hayes, 61 Fed. Rep. 91 1; Bailey v. 

Co. V. Kennedy Min,. etc., Co., 84 Fed. Mosher, 63 Fed. Rep. 488; Minnesota 

Rep. i; Reed v. Northern Pac. R. Co., v. Duluth, etc., R. Co., 87 Fed. Rep. 

86 Fed. Rep. 817; Blue Bird Min. Co. 497; Hurst v. Cobb, 61 Fed. Rep. i: 

V. Largey, 49 Fed. Rep. 289; Iowa v, Lowry v, Chicago, etc., R. Co., 46 

Chicago, etc., R. Co., 33 Fed. Rep. Fed. Rep. 83; American Solid Leather 

391; Los Angeles Farming, etc., Co. Button Co. v. Empire State Nail Co., 

V. Ho£f, 48 Fed. Rep. 340; Berger v. 47 Fed. Rep. 741; Walker v, Richards, 

Douglas County, 5 Fed. Rep. 23, 2 Mc- 55 Fed. Rep. 129; Southern Pac. R. 

Crary (U. S.) 483; Teas v, Albright, Co. v. Townsend, 62 Fed. Rep. 161; 

13 Fed. Rep. 406; Mills v. Central R. South Carolina v. Port Royal, etc., 

Co.. 20 Fed. Rep. 449; Rothschild v, R. Co., 56 Fed. Rep. 333; Burke 

Matthews, 22 Fed. Rep. 6; New York v. Bunker Hill, etc., Min., etc., Co., 46 

V. Independent Steam- float Co., 22 Fed. Rep. 644; Dunton 7. Muth, 45 

Fed. Rep. 801; Hambleton v. Duham. Fed. Rep. 390; Carr v. Fife, 44 Fed. 

32 Fed. Rep. 465; McFadden v. Robin- Rep. 713; Lacroix f/. Lyons, 27 Fed. 

son, 22 Fed. Rep. 10; Virginia Coupon Rep. 403; Miller v, Wattier, 24 Fed. 

Cases^ 25 Fed. Rep. 666; King v. Rep. 419; Houser v, Clayton, 3 Woods 

Neill. 26 Fed. Rep. 721; Kansas v, (U.S.) 273; Miller v. Tobin, 18 Fed. 

Bradley, 26 Fed. Rep. 289; McLane Rep. 609; Mallon v. Hyde, 76 Fed. 

». Leicht, 27 Fed. Rep. 887, 69 Iowa Rep. 388; Frank G. & S. M. Co. 

401; Kessinger v, Vannatta, 27 Fed. v. Lafimer M. & S. Co., 8 Fed. Rep. 

Rep. 890; Wiggins Ferry Co. v, Chi- 724; Lawrence v. Norton, 13 Fed. Rep. 

cago, etc., R. Co., 3 McCrary (U. S.) i; Ellis v. Norton, 16 Fed. Rep. 4; 

285 Volume XVIIL 



tnm State REMOVAL OF CA USES. to ?0dml Courts 

citizen of the same state as the defendant is not exempted from 
the operation of the statute. * 

(b) Snit By or Against Federal Corporation — In OeneraL — It is now 
well settled that a suit b) or against a corporation created by an 
Act of Congress, except a national bank, raises a federal question 
ipso facto and is removable to a federal court on that ground if it 
involves the requisite jurisdictional amount, • 

• 

People V, Chicago, etc., R. Co., i6 Fed. between a settler claiming title to land 

Rep. 706: Illinois v. Illinois Cent. R. as a pre-emptor under the laws of the 

Co., 16 Fed. Rep. 881; New Orleans United States and a railroad company 

Nat. Bank v. Merchant, 18 Fed. Rep. claiming title under an Act of Con- 

841; Willard v. Mueller, 23 Fed. Rep. gress presents a federal question. 

209; State V. Walruff, 26 Fed. Rep. 178; Spokane Falls, etc., R. Co. v, Ziegler, 

Kessinger v, Hinkhouse, 27 Fed. Rep. 167 U. S. 65. 

883; Mahin v, Pfeiffer, 27 Fed. Rep. 1. Ames v, Kansas, iii U. S. 449; 

892; Orner v. Saunders, 3 Dill. (U. Jewett v, Whitcomb, 69 Fed. Rep. 417; 

S.) 284; Connor v, Scott, 4 Dill. Lund r. Chicago, etc., R. Co., 78 Fed. 

(U. S.) 242; Van Allen v. Atchison, Rep. 385. 

etc., R. Co., I McCrary (U. S.) 598; 2. Texas, etc., R. Co. v, Cody, 166 
San Mateo County v. Southern Pac. R. U. S. 606; Texas, etc., R. Co. v. Bar- 
Co., 13 Fed. Rep. 145; Illinois v. Illi- rett, i66 U. S. 617; Oregon Short 
nois Cent. R. Co., 33 Fed. Rep. 721; Line, etc., R. Co. v, Skottowe, 162 U. 
Richards v. Rock Rapids, 72 Iowa 77; S. 490; Texas, etc., R. Co. v. Cox, 145 
Johnson v. New Orleans Nat. Banking U. S. 593; Pacific R. Removal Cases, 
Assoc, 33 La Ann. 479; McKee v. 115 U. S. i; Lund v. Chicago, etc., R. 
Brooks, 64 Tex. 255; Kenyon v. Co., 78 Fed. Rep. 385; Supreme Lodge, 
Squire, r Wash. 9. etc., v. Hill, 76 Fed. Rep. 468; Knights 

Action Against Offloers of National of Pythias v. Kalinski, 163 U. S. 289; 
Bank. — In Bailey v. Mosher, 63 Fed. Supreme Lodge, etc., f^. Wilson, 66 Fed. 
Rep. 488, an action for damages Rep. 785; People v. Colorado Cent. R. 
against the officers and directors of a Co., 42 Fed. Rep. 638; Union Pac. R. 
national bank, it was held that the Co. v. McComb, I Fed. Rep. 799, 17 
complaint, the allegations in which are Blatchf. (U. S.) 510; Turton v. Union 
substantially set out in the report, Pac. R. Co., 3 Dill. (U. S.) 366; Texas, 
sufficiently disclosed a federal question etc., R. Co. v. Bloom, 85 Tex. 279. 
by charging the defendants with a vio- Section 640 of the United States Beyised 
lation of a national banking law, al- Statutes authorized any suit commenced 
though some of the averments in the in a state court against any corpora- 
complaint stated a case of deceit at tion, other than a banking corporation, 
common law. organized under a law of the United 

An Action for Malicious Prosecntion States, to be removed into the Circuit 

Against a United States BiBtriot Attorney Court of the United States upon the 

in causing the plainiiff co be indicted, petition of the defendant stating that 

arrested, and tried for an alleged vio- it had a defense arising under or by 

lation of the pension laws may be re- virtue of the Constitution or of any 

moved by the defendant on the ground treaty or law of the United States. But 

that he was a United States official act- that section was expressly repealed by 

ing under the Constitution and laws the Act of 1887-1888, 24 U. S. Stat, at 

of the United States. Eighmy v, L. 555, c. 373. § 6; 25 U. S. Stat, at L. 

Poucher, 83 Fed. Rep. 855, where the 436, c. 866, § 6. For cases arising un- 

court said that the trial of the action der the section of the statute above 

might " involve and draw in question, mentioned before it was repealed, see 

directly or indirectly, the federal laws, Texas v. Texas, etc., R. Co., 3 Woods 

practice, and procedure, the validity (U. S.) 308; Jones v. Oceanic Steam 

of the organization of the grand jury, Nav. Co., 11 Blatchf. (U. S.) 406; Gard 

and the title, authority, and power of v. Durant, 4 Cliff, (U. S.) 113; Fisk v. 

several executive and judicial officers of Union Pac. R. Co., (U. S. Cir. Ct.) 10 

the general government." Abb. Pr. N. S. (N, Y.) 457; Ellis v. 

Title to PnbUo Land. — A controversy Atlantic, etc., R. Co., 134 Mass. 338; 

236 Volume XVIIL 



IMn State REMOVAL OF CA USES. to Federal Courts 

Suits By or Againit Vational Banks. — By Act of Congress a national 
bank is a citizen of the state wherein it is located,* and it has 
the same right to remove a suit upon the ground that it arises 
under the Constitution or laws of the United States as any citi- 
zen of the state in which it is located.* But a suit by or against 
a national bank does not ipso facto raise a federal question by 
reason of its character as a federal corporation.* 

(o) Suit By or Against Beceiver Appointed by Federal Court — In General. — 
Any suit by or against a receiver appointed by a federal court 
concerning the performance of his official duties raises a federal 
question and is removable if the requisite amount is involved.* 

Ancillary Suits. — And it has been held that an action against 
such receiver in respect of any act or transaction of his in carry- 
ing on the business connected with the property in his charge* 
is ancillary to the suit in which he was appointed and may be 
removed regardless of either the citizenship of the parties or the 
amount in controversy.* 

Sclieffer v. National L. Ins. Co., 25 etc., R. Co., 78 Fed. Rep. 385; Wash- 

Mina. 534; Hazard v, Durant, 9 R. I. ington v. Northern Pac. R. Co., 75 Fed. 

602; Texas, etc., R. Co. v. McAllister, Rep. 333; Central Trust Co. v. East 

59 Tex. 349. Tennessee, etc., R. Co., 59 Fed. Rep. 

1. Act of 1887-1888, 24 U. S. Stat, at 5231 Van Wert County v, Peirce, 90 

L. 554. c. 373, §4; 25 U. S. Stat, at L. Fed. Rep. 764; Evans v. Dillingham, 

436, c. 866, § 4, which provides as fol- 43 Fed. Rep. 177; Jeweti v. Whitcomb, 

Ijffs: ** All national banking associa- 69 Fed. Rep. 417; Landers v. Fel- 

tioQs established under the laws of the ton, 73 Fed. Rep. 311; St. Louis, etc., R. 

United States shall, for the purposes of Co. v. Trigg, 63 Ark. 536; Hard wick 

all actions by or against them, real, r. Kean, 95 Ky. 563. Compare Echols 

personal, or mixed, and all suits in v. Smith, (Ky. 1897) 42 S. W. Rep. 

equity, be deemed citizens of the states 538. 

in which they are respectively located; 5. The Act of 1887-1888, 24 U. S. 

and in such cases the circuit and dis- Stat, at L. 554, c. 343, § 3; 25 U. S. 

trict courts shall not have jurisdic- Stat, at L. 436, c. 866, § 3, provides 

tioQ other than such as they would as follows: " That every receiver or 

have in cases between individual citl- manager of any property appointed by 

zeas of the same state. The provi- any court of the United States may be 

81008 of this section shall not be held sued in respect of any act or transac- 

to affect the jurisdiction of the courts tion of his in carrying on the business 

of the United States in cases com- connected with such property, without 

menced by the United States or by di- the previous leave of the court in which 

rection of any officer thereof, or cases such receiver or manager was ap- 

for winding up the affairs of any such pointed; but such suit shall be subject 

hank." to the general equity jurisdiction of the 

8. Leather Manufacturers' Bank v. court in which such receiver or man- 
Cooper, 120 U. S. 778. See also Wichita ager was appointed, so far as the same 
Nat. Bank v. Smith, 72 Fed. Rep. 570. shall be necessary to the ends of 

8. National Bank of Commerce v. justice.*' 

Gallaad, 14 Wash. 502; Leather Man u- 6. Carpenter v. Northern Pac. R. 

facturers* Bank r. Cooper, 120 U. S. Co., 75 Fed. Rep. 850; Sullivan v. 

778; Wichiu Nat. Bank v. Smith. 72 Barnard, 81 Fed. Rep. 886. See also 

Fed. Rep. 568; Burnham r. Bank, 53 White v, Ewing, 159 U. S. 36: Rouse 

Fed. Rep. 163. v. Letcher, 156 U. S. 47. Compare 

4. Texas, etc., R. Co. v. Cox, 145 U. Pitkin v. Cowen, 91 Fed. Rep. 599. 

S* S93; Smith V, Greenhow, 109 U. S. And as to the necessity of a jurisdic- 

^; Gableman v. Peoria, etc., R. Co., tional amount in dispute, see Ray v. 

8a Fed. Rep. 790; Lund v, Chicago, Peirce, 81 Fed. Rep. 881. 

387 Volume XVIIL 



PMm 8teto REMOVAL OF CA USES, to Vadml Oonrtik 

(d) 8iiit Against BooeiTor of Vational Bank. — A suit against a receiver 
of a national bank appointed by the comptroller of the currency 
raises a federal question and is removable upon that ground.^ 

(2) Who May Remove the Suit. — See infra^ I,ig.d. On Ground 
of Federal Question. 

d. Suits by the United States. — The statute authorizes 
the removal of suits in which the United States are plaintiffs or 
petitioners.* 

e. Suits Between Citizens and Aliens. —The statute 
authorizes the removal of suits in which there is a controversy 
between citizens of a state and foreign states, citizens, or 
subjects.* 

A Corporation created by the laws of a foreign government is a 
foreign citizen within the meaning of the removal act.* 

Timo of Foreign Citisengliip. — The alienage of the party must exist 
both at the commencement of the suit and at the time of filing 
the petition for removal.* 

If Thore Are Several Parties on One or Both Sides of the suit, it cannot 
be removed under the statute unless all of the necessary parties 
on one side are citizens of a state and all on the other foreign 
citizens;* in other words, a suit in which necessary parties on 

1. Speckart v, German Nat. Bank, and a suit by an alien plaintiff was not 
85 Fed. Rep. 12; Hot Springs Inde- removable. Galvin v. Boutwell, 9 
pendent School Dist. No. 10 v. Hot Blatchf. (U. S.) 470; Dennistoun v. 
Springs First Nat. Bank. 61 Fed. Rep. New York, etc., R. Co., i Hilt. (N. 
417. See also Sowles v, St. Albans Y.) 62. 

First Nat. Bank, 46 Fed. Rep. 513; 4. Terry v. Imperial F. Ins. Co., 3 

Sowles V. Witters, 43 Fed. Rep. 700. Dill. (U. S.) 408; Shattuck v. North 

But compare Wichita Nat. Bank v, British, etc.. Ins. Co., 58 Fed. Rep. 

Smith, 72 Fed. Rep. 568; Tehan v. 609; Sherwood v. Newport News, etc.. 

Auburn First Nat. Bank, 39 Fed. Rep. Co., 55 Fed, Rep. i; Pelzer Mfg. Co. 

577; Snohomish County v, Puget v, Hamburg-Bremen F. Ins. Co., 62 

Sound Nat. Bank, 81 Fed. Rep. 518. Fed. Rep. i. 

2. Act of 1887-1888, 24 U. S. Stat, at 5. Creswell v, Belanger, 56 Fed. 
L* 552, c. 373; 25 U. S. Stat, at L. 433, Rep. 529; National Steamship Co. v. 
c. 866. See Texas v. Texas, etc., R. Tugman, ic^ U. S. 118. 

Co., 3 Woods (U. S.) 311. 6. Tracy r. Morel. 88 Fed. Rep. 801; 

8. Act of 1 887-1 888, 24 U. S. Stat, at Sawyer v, Switzerland Marine Ins. 

L. 552, c. 373; 25 U. S. Stat, at L., Co., 14 Blatchf. (U. S.) 452; Ex p, 

434, c. 866. For cases of removal of Girard, 3 Wall. Jr. (C. C.)265; Hervey 

suits between citizens and aliens, see v, Illinois Midland R. Co., 7 Biss. (U. 

Stalker v. Pullman's Palace-Car Co., S.) 103; Fields v. Lamb, Deady (U. S.) 

81 Fed. Rep. 989; Missouri v, Alt, 73 432; Calderwood v. Braly, 28 Cal. 97; 

Fed. Rep. 302; Cudahy v, McGeocb, People r. Hager, 20 Cal. 167; Welch 

37 Fed. Rep. i; Uhle v, Burnham, 42 v. Tennent, 4 Cal. 203; Crane v. Seitz, 

Fed. Rep. I; Purcell f . British Land, 30 Mich. 453; Dennistoun i^. New York, 

etc., Co., 42 Fed. Rep. 465; Cooley v. etc., R. Co., i Hilt. (N. Y.) 65. For the 

McArthur, 35 Fed. Rep. 372; Walker v. same principle see supra, 1. 16. a, (4) (a) 

O'Neill, 38 Fed. Rep. 374; Oscanyan Tfu Rule Stated. 

V. Winchester Repeating Arms Co., 103 Cd^iTi/ar^ Guarantee Co. v. Lynchburg 

U. S. 26t; Creagh v. Equitable L. First Nat. Bank, 95 Va. 480, where it 

Assur. Soc, 83 Fed. Rep. 849. appears to have been assumed by the 

Under the Act of 1789 it was necessary court that in a suit by a citizen against 

for the plaintiff to be a citizen of the an alien nonresident and a citizen of a 

state in which the suit was brought, state other than that of the plaintiff or 

288 Volume XVIII. 



I^om Bute REMOVAL OF CA USES. to Federal Ckmrtfc 

both sides are aliens is not removable.^ But the citizenship or 
alienage of formal, nominal, or unnecessary parties is imma- 
terial.* 

17. Bemoval for Prejudice or Local Influence — a. What Causes 
Are Removable for Prejudice, etc. — (i) In Respect of 
Subject -matter, — Section 2 of the Act of 1887-1888 provides 
for the removal on the ground of prejudice or local influence of 
** a suit," and undoubtedly means, so far as the character of the 
suit and the subject-matter of the controversy are concerned, a 
suit of a civil nature at law or in equity of which the Circuit 
Courts of the United States are given original jurisdiction by sec- 
tion I of the same act and jurisdiction by removal for diverse 
citizenship under another clause of section 2.' 

in which the suit was brought, the de- Such was the construction in respect 

fendants could remove the suit on their of the amount in controversy, neces- 

joiot petition. sary to jurisdiction, that was placed 

Alien Kot Senred with Procesa. — If an upon the act in In re Pennsylvania Co., 

alien defendant is joined with citizen 137 U. S. 451. and is applicable to (he 

defendants, but has not been served other jurisdictional requisites. As to 

with process, he is not a party so as to what constitutes a suit of a civil na- 

prevent removal by his codefendants. ture, etc., see generally supra, p. 166; 

Poppenhauser v, India Rubber Comb and for cases which arose under" local 

Co., 14 Fed. Rep. 708. See also Cudahy prejudice " acts, see Du Vivier v. Hop- 

V, McGeoch, 37 Fed. Rep. i. kins, 116 Mass. 125; In re Cilley, 58 

Voluntary Appearance, — But where Fed. Rep. 977; Upshur County v. Rich, 

a citizen defendant was joined with an 135 U. S. 467. 

alien, the presence of the former pre- History and CoDstitutionality of Prejn- 

vented a removal though he was not dioe or Local Influence Acts — Original 

served with process where he volun- Occasion for Act, — Soon after the close 

larily appeared. Ex p, Girard, 3 of the civil war, and when Northern 

Wall. Jr. (C. C.) 265. creditors began to press heavily for 

1. Merchants* Cotton Press, etc., Co. payment upon their ante-bellum debt- 
r. Insurance Co. of North America, ors. Hobby v, Allison, 13 Fed. Rep. 
151 U. S. 386. 403, Congress passed the original act 

A Suit 1^ an Alien Against an Alien for the removal of causes from a state 

cannot be removed on the ground of to a federal court upon the ground of 

alienage of a party. Barrowcliffe v. prejudice or local influence. Act of 

La Caisse General, 58 How. Pr. (N. Y. 1867, 14 U. S. Stat. at. L. 558, c. 

Marine Ct.) 131: Johnson v. Accident 196. ** About the time of the late civil 

Ins. Co., 35 Fed. Rep. 376; Lacroix v, war in this country it became the policy 

L^ons, 27 Fed. Rep. 403; Orosco v, of Congress to enable parties, citizens 

Gagliardo, 22 Cal. 83. of different states, for reasons readily 

Removal for Federal Question. — If imagined, to remove a class of cases 

the case is one arising under a treaty not included in the original act, and 

of the United States it is no objection to remove them at times and under 

to the federal jurisdiction that both circumstances which could not be done 

parties are aliens. Lacroix v, Lyons, under that act." Per Justice Miller, 

27 Fed. Rep. 404, where the court re- in Arapahoe County v, Kansas Pac. R. 

fers to New Orleans, etc., R. Co. v. Co., 4 Dill (U. S.) 281. ** It berame 

Mississippi, 102 U. S. 135. the law at a period of angry sectional 

2. Thus merely nominal or formal feeling and great prejudice in certain 
parties joined as defendants with an localities against citizens of other por- 
alien cannot prevent the latter from re- tions of the country." Hone v. Dillon, 
moving the case. Shattuck v. North 29 Fed. Rep. 467. To the same effect 
British, etc., Ins. Co., 58 Fed. Rep. 6og. see Cook v, Whitney, 3 Woods (U S.) 

8. 24 U. S. Sut. at L. 553, c. 373, § 2; 717; Gaines v, Fuentes, 92 U. S. 19. 
25 U. S. Stat, at L. 435, c. 866, § 2. The ori^iQ^l occasion for the act 

289 Volume XVIII. 



Vrom 8teto REMOVAL OF CA USES. to Fodml Govrti. 

(£) In Respect of Citizenship of Parties — (a) TUm of Citlienihip. 
— The necessary diversity of citizenship as expounded in the 
rest of this division must exist not only at the time of the appli- 
cation for removal, but also at the commencement of the suit.* 

(b) dtiienship of FlaintiiBi. — In suits removable for prejudice or 

local influence under the Act of 1887-1888, the plaintiff must be 

a citizen of the state where the suit is brought, and if there are 
several plaintiffs all must be citizens of that state,' at least if 

probably no longer exists, and the act Exp. Jones, 66 Ala. 202; Weed Sewing 

is now resorted to chiefly by corpora- Mach. Co. v. Smith, 71 111. 204; Laird 

tion defendants. t/. Connecticut, etc., R. Co., 55 N. H. 

Subsequent Provisions. — The act was 375; Dart v. Walker, (C. PI. Gen. T.) 

subsequently embodied in section 639 43 How. Pr. (N. Y.) 29. Before the 

of the United States Revised Statutes, point was settled by the Supreme 

but removals for prejudice or local in- Court some of the cases held that it was 

fluence are now governed entirely by only necessary for the diverse citizen- 

the Act of 1887-1888, cited at the head ship to exist at the lime of removal, 

of this note. Hone v. Dillon, 29 Fed. Rep. 467; 

Constitutionaliiy. —Thfi Act of 1867 Cook v. Whitney, 3 Woods (U. S.) 715; 

above mentioned, although it provided Johnson v. Monell, Woolw. (U. S.) 

for a removal by a plaintiff as well as 390; Miller v. Chicago, etc., R. Co., 

by a defendant, was declared constitu- 17 Fed. Rep. 97; Hammond v. Bu- 

tional in numerous cases. Goodman chanan, 68 Ga. 729; Nye v. Northern 

V. Oshkosh, 45 Wis. 356; Meadow Val- Cent. R. Co.. 24 Hun (N. Y.) 556. The 

ley Min. Co. v. Dodds, 7 Nev. 143; point was left undecided in Phoenix 

Burson v. National Bank, 40 Ind. Ins. Co. v. Pechner, 95 U. S. 185. 

173; Galpin v. Critchlow, 112 Mass. 2. Act of 1887-1888, 24 U. S. Stat, at 

339; Mahone v. Manchester Corp., in L. 553, c. 373, § 2; 25 U. S. Stat, at L. 

Mass. 72; Railroad Co. v. Whitton, 435, c. 866, § 2, providing for removal 

13 Wall, (U. S.) 270; Johnson v, of a suit " in which there is a contro- 

Monell, I Wollw. (U. S.) 390. versy between a citizen of the state in 

1. Bradley v. Ohio River, etc., R. which the suit is brought and a citizen 

Co., 78 Fed. Rep. 388, 119 N. Car. 744; of another state;*' Rike v. Floyd, 42 

Jackson, etc., Co. v. Pearson, 60 Fed. Fed. Rep. 247; Thouron v. East Ten- 

Kep. 121. nessee, etc., R. Co., 38 Fed. Rep. 673; 

As to Kew Defendant. — But where Wilder v. Virginia, etc.. Steel, etc., 

the suit as originally instituted is be- Co., 46 Fed. Rep. 676; Lawson v. Rich- 

tween citizens of the state in which it mond, etc., R. Co., 112 N. Car. 300. 

is brought, and a citizen of another See also Case v. Douglas, i Dill. (U. 

state who would not have been bound S.) 299. 

by a judgment between the original Alien FlaintiA. — If the plaintiff, or 

parties alone is brought in as a defend- one of several plaintiffs, is an alien, the 

ant by amended complaint, he may re- cause is not removable for prejudice 

move the suit. Jackson, etc., Co. v. or local influence. Cohn v. Louisville, 

Pearson, 60 Fed. Rep. 113, distinguish" etc., R. Co., 39 Fed. Rep. 227. Sec 

ing Richmond, etc., R. Co. v. Findley, also Thouron v. East Tennessee, etc., 

32 Fed. Rep. 641. R. Co., 38 Fed. Rep. 673. 

Under the Prior Aets for Bemoval on Beorrangement of Parties to Determine 
the ground of local prejudice, it was Ueal Plaintifb. — Parties named as de- 
held that the diverse citizenship must fendants whose interests are really ad- 
exist at the time when the suit was verse to other defendants petitioning 
brought as well as when the petition for removal will be regarded as plain- 
for removal was filed. Young v. Par- tiffs, and if after the parties are thus 
ker, 132 U. S. 267; Grand Trunk R. arranged it is found that some of the 
Co. V. Twitchell, 59 Fed. Rep. 727; plaintiffs are aliens or citizens of other 
Schnadig v. Flescher, 29 Fed. Rep. states than that in which the suit is 
465 ; Frelinghuysen v. Baldwin, 19 brought, it cannot be removed. Adel- 
Fed. Rep. 49; Northern Pac. Terminal bert College v. Toledo, etc., R. Co., 47 
Co. V. Lowenberg, 18 Fed. Rep. 342; Fed. Rep. 836. 
Goodnow V, Grayson, 15 Fed. Rep. i ; Interrening Plaintiff in SeproMiit»ttv« 

d40 Volume XVIII. 



rnm Steto REMOVAL OF CA USES. to Federal Gonrti. 

they are all jointly concerned in the cause of action against the 
defendant who applies for removal.^ 

(e) mtiienihip of Befondaats. — The removal act of 1 867' and its 
substantial re-enactment in clause 3 of section 639 of the United 
States Revised Statutes • were uniformly held to require that all 
the necessary parties on one side of the suit should be citizens of 
different states from those on the other,* and not to permit a 
removal for prejudice or local influence because of a separable 
controversy between one of the defendants and the plaintiff; all 
the defendants were required to unite in the petition for 
removal.' The Act of 1875 • contained nothing concerning 
removal on the specific ground of prejudice or local influence, and 
did not repeal clause 3 of section 639 of the Revised Statutes.'' 

fait. — Where the original plaintiffs in Iowa 449; Howland Coal, etc.. Works 

an equity case sning on behalf of v. Brown, 13 Bash (Ky.) 681; Stafford 

themselves and all others similarly v, Twitchell, 33 La. Ann. ^20; Martin 

situated are not citizens of the state in v. Coons, 24 La. Ann. 169; Crane v. 

which the suit is brought, it does not Seitz, 30 Mich. 453; Miller v, Finn, z 

become removable by the intervention Keb. 254; Weeks r. Billings, 55 N. H. 

as coplaintiff on his own application of 371; Bryant v. Scott, 67 N. Car. 391; 

one naming the same class interest who Hazard v, Durant, 9 R. L 602; Beery 

Is a citizen of that state. Thouron v, tr. Irick, 22 Gratt. (Va.) 484. See also 

East Tennessee, etc., R. Co., 38 Fed. the cases cited in the next note. 
Rep. 673. 5. Sewing Mach. Co.*8 Case, 18 

ITnder Prior Semoval Aets. — Under Wall. (U. S.) 553; Vannevar t^. Bryant, 

the Act of 1867, 14 U. S. Stat, at L. 558, 21 Wall. (U. S.) 41; American Bible 

c 196, and Rev. Stat. U. S., § 639, Soc. v. Price, no U. S. 61; Cambria 

which allowed a removal by either the Iron Co. v. Ashburn, 118 U. S. 54; 

plaintiff or the defendant, it was neces- Myers v. Swann, 107 U. S. 546; Ameri- 

sary that the party adverse to the one can Bible Soc. v. Grove, loi U. S. 611; 

who sought a removal should be a citi- Jefferson v. Driver, 117 U. S. 272; 

sen of the state where the suit was Hancock v, Holbrook, 119 U. S. 

brought. American Bible Soc. v, 586; Young v. Parker, 132 V. S. 267. 

Grove, zoi U. S. 610: Amory v. See also Hanrick v. Hanrick, 153 U. S. 

Amory, 95 U. S. 187; Knickerbocker 196; Blake v. McKim, 103 U. S. 339; 

L. Ins. Co. V, Gorbach, 70 Pa. St. 150. Bixby v, Couse, 8 Blatchf. (U. S.) 73; 

1. Gann v. Northeastern R. Co., 57 Case v. Douglas, i Dill. (U. S.) 
Fed. Rep. 417. 299; Bliss p. Rawson,43 Ga. 181; Bry- 

2. 14 U. S. Stat, at L. 558, c. 196, ant v. Rich, 106 Mass. 180; Merwin v» 
which authorized a removal by either Wezel, (C. PI. Spec. T.) 49 How. Pr. 
the plaintiff or the defendant if he was (N. Y.) 115; George v, Pilcher, 28 
a citizen of a state other than that in Gratt. (Va.) 299. Compare Cooke v, 
which the suit was brought. State Nat. Bank, 52 N. Y. 96. 

8. Which, however, like the Act of 6. Act of March 3, 1875, 18 U. S. 

1789, described the case to be removed Stat, at L. 470, c. 137. 

as " a suit " between a citizen of the 7, Fisk v, Henarie, 142 U. S. 459; 

state in which it is brought and a citi- Hanrick v. Hanrick, 153 U. S. 197; 

zen of another state, instead of describ- American Bible Soc. v. Grove, loi U. 

ing it as in the Act of 1867, 14 U. S. S. 610; Hess v, Reynolds, 113 U. S. 

Stat, at L. 558, c. 196, as ** a suit 73: Baltimore, etc., R. Co. v. Bates, 

• • • in which there is controversy 119 U. S. 464; Field v, Williams, 24 

between " such parties. Fed. Rep. 513; Melendy v. Currier, 

4. Myers v, Swann, 107 U. S. 546; 22 Fed. Rep. 129; Hobby ». Allison, 13 

American Bible Soc. v. Price, no U. Fed. Rep. 401; Johnson v, Johnson, 

S. 6i; Hancock v. Holbrook, 119 U. S. 13 Fed. Rep. 193; Farmers' L. & T. 

586; Rosenthal v, Coates, 148 U. S. Co. v, Chicago, etc., R. Co., 9 Biss. ^U. 

142; Ex p, Andrews, 40 Ala. 639; S.) 133; Sims v. Sims, 17 Blatchf. (U. 

Barch v, Davenport, etc., R. Co., 46 S.) 369; Cooke v. Ford, 2 Flipp. (U. S.) 

18 Encyc. PI. & Pr. — 16 241 Volume XVIII. 



From Btete REMOVAL OF CA USES. to Fodoral Gonrta. 

The Act of 1 887-1 888 ^ allows none but defendants to remove 
any cause whatever,* and by new regulations of removals for 
prejudice or local influence supersedes and repeals the earlier 
statutes upon that subject.' Whether this act permits one of 
two or more defendants to remove any case which he could not 
have removed under earlier statutes is a question upon which 
there has been no definite expression of opinion by the Supreme 
Court.* One of the Circuit Courts holds that all of the defend- 
ants must be citizens of states other than that of the plaintiff, 
and in which the suit is brought.* But according to the weight 
of authority, any one defendant, being a citizen of another state 
than that in which the suit is brought, who is jointly sued with 

22; Dennis v. Alachua County, 3 by defendants who were nonresidents 

Woods (U. S.) 683; Hammond v, Bu- of the state where the suit was brought, 

chanan, 68 Ga. 728; Sharp v. Gutcher, although other defendants were resi- 

74 Ind. 357; Barber v. St. Louis, etc., dents and citizens of the same state as 

R. Co., 43 Iowa 223; Stone v. Sargent, the plaintiff (see Fisk v. Henarie, 32 

129 Mass. 503; Lang v. Lynch, 63 N. Fed. Rep. 4x7). On writ of error the 

H. 243; Nye c. Northern Cent. R. Co., Supreme Court ordered (he cause to 

24 Hun (N. Y.) 556; Wickham v. Wick- be remanded to the state court, but on 

ham, 20 Hun (N. Y.) 239; Bates v. Bal- another ground. See the commenis 

timore, etc., R. Co., 39 Ohio St. 157. on this case in Jackson, etc., Co. v. 

1. 24 U. S. Stat, at L. 552, c. 373; 25 Pearson, 60 Fed. Rep. 125. See also 
U. S. Stat, at L. 433, c. 866. Wilder v. Virginia, etc.. Steel, etc., 

2. See on that point, as to removals Co., 46 Fed. Rep. 682, where the opin- 
for prejudice or local influence, infra^ ion was written by Chief Justice Fuller. 
\. 17. d. Who May Remove Suit, 5. Eighth Circuit. — Anderson w. 

8. Hanrick v. Hanrick, 153 U. S. Bowers, 43 Fed. Rep. 321; Durkee v, 

197; Fisk V, Henarie, 142 U. S. 459; Illinois Cent. R. Co., 81 Fed. Rep. i. 

Hobart v. Illinois Cent. R. Co., 81 Defendant Frandnlently Joined. — In 

Fed. Rep. 5; Minnick v. Union Ins. Durkee v. Illinois Cent. R. Co., 81 

Co., 40 Fed. Rep. 369; South worth v. Fed. Rep. i, above cited, it was held 

Reid, 36 Fed. Rep. 451; Whelan v. that where the petition and affidavit 

New York, etc., R. Co., 35 Fed. Rep. allege that a codefendant who is a citi- 

849; Short f. Chicago, etc., R. Co., 34 zen of the same state as the plaintiff 

Fed. Rep. 226; Mason v. Interstate has no real interest in the controversy 

Consol. St. R. Co., 170 Mass. 382. and is made a party for the sole pur- 

Contra^ Stix v, Keiih, 90 Ala. 121. pose of preventing a removal to the 

The Language of Uie Act is that federal court, his presence will not de- 

'* where a suit is now pending, or may feat the jurisdiction of the federal 

be hereafter brought, in any state court unless issue be joined upon the 

court, in which there is a controversy allegations and they be disproved, 

between a citizen of the state in which See upon that subject supra^ p. 203. 

the suit is brought and a citizen of an- Under Prior SemoTal Act. — In How- 

other state, any defendant, being such land Coal, etc., Works v. Brown, 13 

citizen of another stale, may remove Bush (Ky.) 681, the court declined 

such suit,*' etc. 24 Stat, at L. 553, c. to construe Rev. Stat. U. S., § 639, as 

373f § 2; 25 Stat, at L. 435, c. 866, § 2. authorizing the removal of a suit on 

4. Hanrick v, Hanrick, 153 U. S. the petition of one defendant who was 

X97, where the court refrained from not a citizen of the state where the suit 

deciding whether one of several de- was brought, where there were other 

fendants could remove a case on the necessary defendants who were citizens 

ground of prejudice and local influence of that state as well as the plaintiff, 

and a separable controversy, there The court said that such a construction 

being other sufficient reasons in that would render that provision of the Act 

case for remanding the cause. In Fisk of Congress unconstitutional. See also 

V. Henarie, 142 U. S. 459, the federal Stephens v. Howe, (N. Y. Super. Ct. 

Circuit Court had allowed a removal Spec. T.) 43 How. Pr. (N. Y.) 134. 

242 Volume XVIII. 



7r«n But* 



REMOVAL OFCAUSES. to Federal Courts. 



other defendants, citizens of the same state as the plaintiffs, may 
remove the suit for prejudice or local influence, even though 
there is no separable controversy between the plaintiff or plain- 
tiffs and the removing defendant.* The real party defendant 
may have the cause removed without regard to the citizenship of 
other defendants whose interests are nominal or adverse to the 
party seeking a removal.* 



1. Faurik Circuit, — See Wilder v, 
Virginia, etc., Steel, etc., Co., 46 Fed. 
Rep. 679, //r Chief Justice Fuller, gen- 
erally coosidered as impliedly sustain- 
lag this 7ie«7. 

Fifth Circuit, — Haire v. Rome R. 



language of the Act of 1867, 14 U. S. 
Stat, a! L. 558, c. 196. Bat it was 
never decided under the Act of 1867 
that the presence of an alien in the 
suit was fatal to a removal for any 
other* reason than was the presence of a 



Co., 57 Fed. Rep 321, /^r Newman, J., codefendant who was a ciiizea of the 
holding that one defendant may thus state in which the suit was brought. 



remo/e the case whether there is a 
separable controversy or not; Gann v. 
North iistern R. Co., 57 Fed. Rep. 420. 
/^r Justice Lamar. 

Sixth Ci>^«i/. — Whelan v. New 
York, etc., R. Co., 35 Fed. Rep. 849, 



Now, since the cases cited at the head of 
this note remove the last objection, it 
would seem that (he presence of an 
alien defendant should not prevent a 
removal by a codefendant citizen of a 
state other than that in which the suit 



/^r Jackson, J., the leading case on this is brought. In Thouron v. East Ten- 
point; Jackson, etc., Co. v, Pearson, nessee, etc., R. Co., 38 Fed. Rep. 673, 
60 Fid. Rep. 113; Hall v, Chattanooga one of the plaintiffs was an alien and 



Agricjltaral Works, 48 Fed. Rep. 599; 
Olds Wagon Works v. Benedict, 67 
Fed. Rep. i; Tod v, Cleveland, etc., 
R. C0..65 Fed. Rep. 147; Huskins v. 
Cincinnati, etc., R. Co., 37 Fed. Rep, 
507; Thouron v. Cast Tennessee, etc., 
R. Co.. 33 Fed Rep. 676; Detroit v. 
Detroit City R. Co., 54 Fed. Rep. i. 

Seventh Circuit. — See Bane v, 
Keefer, 66 Fed. Rep. 610. 



the other was not a citizen of the state 
where the suit was brought. The suit 
was held not to be removable, but 
the giound of the decision was that the 
plaintiffs were not both citizens of the 
state where the suit was brought. The 
fact that one of them was an alien 
was no further noticed in the opinion. 
In Cohn v, Louisville, etc.. R. Co., 39 
Fed. Rep. 227, the plaintiff was an 



Ninth Circuit, — Fisk v. Henarie, 32 alien, and of course the suit was not 



Fed. Rep. 417; Bonner v. Msikle, 77 
Fed. Rep. 489; Tacoma v, Wright, 
84 Fed. Rep. 836. 

North Carolina, — Daird v. Rich- 
m^ii etc., R. Co., 113 M. Cir. 610. 

Oae of the Defendants an Alien. — Sec- 
tion 639 of the United States Revised 
Staiuies provided for removal on the 



removable. See supra, p. 240, note 2. 
And the cases cited infra, p. 249, note 2, 
simply hold that an alien cannot re- 
move the cause, which is aside from 
the point here considered. 

3. Reeves v. Corning, 51 Fed. Rep. 
778, per Baker, J . where it appeared 
that the codefendant, who was a citizen 



ground of local prejudice" when a >msV of the same state as the plaintiff, was 

is between a citizen of the state in either a mere stakeholder or interested 

which it is brought and a citizen of an- adversely to the defendant; Calloway 

other state," and it was quite clear, v. Ore Knob Copper Co., 74 N. Car. 

th^jgh never expressly decided, that 200. S^e also supra, p. 197. 
the presence of an alien party on Under the Prior ** Loml Frejndioe " Aeti 

either side of the suit wjuld prevent a the presence on the same side with the 

removal. See Grand Trunk R. Co. v, party seeking removal, of parties whose 

Tnriichell, 59 Fed. Rep. 727; Burling- citizenship was the same as that of the 

ton, etc., R. Co. v. Dunn, 122 U. S. opposite party, did not pievent a re- 

513*. Voung V, Parker, 132 U. S. 267. moval if such parties were unneces- 

The Act of 1887-1888 provides for re- sary, or merely formal, Calloway v, 

moval of a suit" in which there is a Ore Knob Copper Co.. 74 N. Car. 200; 

controversy between ** etc. 24 U. S. Stat, or if their interests were adverse to the 

at L. 553, c. 373, § 2; 25 U. S. Stat, at party seeking removal, Swann r. 

L. 435> c. 866, % 2. This was also the Myers, 79 N. Car. loi. 

348 Volume XVIII. 



From Bteto REMOVAL OF CA USES. to Fodoral CoiirU. 

(3) Afnount in Dispute. — The clause in the Act of 1887-1888 
allowing a removal for prejudice or local influence does not name 
any amount as requisite/ but it is settled by the Supreme Court 
that the matter in dispute must exceed, exclusive of interest and 
costs, the sum or value of two thousand dollars.* 

b. Nature of Prejudice, etc., Required — (i) In General. 

— ** Prejudice or locad influence" authorizing the removal of 
the cause must be such that the defendant '' will not be able to 
obtain justice " in the state courts.' It may relate to the person 
of the litigant or to the subject-matter of the litigation, but in 
either case there must exist improper bias, partiality, unreason- 
able predilection, or hostility in the local community or courts.* 

1. 24 U. S. Stat, at L. 553, c. 373, lary. — The evidence necessary to sup- 

§2; 25 U. S. Stat, at L. 435, c. 866, port the federal jurisdiction does not 

§ 2. have to prove morally that the defend- 

8. In re Pennsylvania Co., 137 U. S. ant cannot obtain a just decision in the 

451, where the court arrived at this state court. The existence of local in- 

conclusion upon careful consideration fluence and its natural tendency to 

of the several sections of the Act of operate upon the court being shown, 

1887-1888 in connection with the prior the tribunal may be deemed to be one 

acts on the subject of removal for local in which, in the sense of the removal 

prejudice. Followed in Tod v, Cleve- statute, justice cannot be obtained, 

land, etc., R. Co., 65 Fed. Rep. 145, Tacoma v. Wright, 84 Fed. Rep. 836; 

>rhere the case was remanded because Detroit v. Detroit City R. Co., 54 Fed. 

the amount in controversy did not ap- Rep. i. 

pear in the petition or affidavit or else- 4. Per Jackson, J., in Adelbert Col- 

where in the record. For other cases lege v, Toledo, etc., R. Co., 47 Fed. Rep. 

in the federal Circuit Courts and in the 843, where it was also said that " the 

state courts holding the same way, see term ' local influence,* if not synonv- 

Roraback v. Pennsylvania Co., 42 Fed. mous with * prejudice,* manifestly 

Rep. 420; Carson, etc., Lumber Co. v, refers to an improper influence exerted 

Holtzclaw, 39 Fed. Rep. 579; Malone by or existing in favor of one side, or 

V. Richmond, etc., R. Co., 35 Fed. against the other, which will prevent 

Rep. 625; Bierbower v. Miller, 30 Neb. the latter from obtaining justice in ihe 

161; Tucker v, Inter-States L. Assoc, state courts.*' 

112 N. Car. 797. Contra^ now over- ** There may be a prejudice in favor 

ruled^ Fales v, Chicago, etc., R. Co., 32 of his adversary that would be as much 

Fed. Rep. 673; McDermott ?/. Chicago, in his way of obtaining justice as a 

etc., R Co., 38 Fed. Rep. 529, holding prejudice against himself. The preju- 

that the amount in dispute was not dice and local influence mentioned in 

material ; Frishman v. Insurance the statute is not merely a prejudice 

Companies, 41 Fed. Rep. 449. or influence primarily existing against 

8. Act of 1887-1888, 24 U. S. Stat, at the party seeking a removal. It in- 
L. 553. c- 373. § 2; 25 U. S. Stat, at L. eludes as well that prejudice in favor 
435, c. 866, § 2, requiring that it shall of his adversary which may arise from 
be made to appear to the Circuit Court the fact that he is long resident and 
** that from prejudice or local influence favorably known in the community.** 
he will not be able to obtain justice in Per Deady, J., in Neale v. Foster, 31 
such state court'* — which was the Fed. Rep. 53, quoted and applied as 
language of the earlier local prejudice ** exactly in point *' in Smith v. Crosby 
acts — •' or in any other state court to Lumber Co., 46 Fed. Rep. 819, and 
which the said defendant may, under also quoted with approval in Paiks v. 
the laws of the state, have the right, Southern R. Co., 90 Fed. Rep. 3. 
on account of such prejudice or local Iiistanoei of Casw Held Bemoyable. — 
influence, to remove said cause." The In Smith v, Crosby Lumber Co., 46 
part last quoted was not in the earlier Fed. Rep. 819, an application for re- 
acts, moval was granted by Reed, J., upon 

Moral Certainty of I^jostioe Not Veeai- affidavits averring substantially the 

244 Volume XVIII. 



ttm State REMOVAL OF CA USES. to Federal Courte. 

In one case the court associated '* local influence " with the plain- 
tiff, and *' prejudice " with the defendant.* However that may 
be, the existence of either will suffice as a ground for removal, 
since the terms are connected by the disjunctive.* 

(2) Prejudice of Judges, — The prejudice or local influence most 

frequently urged as a ground for removal is that which would 
operate upon a jury; but the clause of the removal act relates 

existence of a widespread prejudice ciation of the defendant and his asso- 
among the citizens of the county ciates, on account of the transactions 
against the defendant, a general sym- out of which the lawsuit arose, and 
pathy for the plaintiff, and particularly that there was in the minds of a great 
for his father, both of whom had many number of the citizens a strong belief 
friends throughout the county, and that the people of the city had been de- 
had been well-known business men, frauded in those transactions, and a 
and were generally supposed to have disposition to hold the defendant re- 
been ruined financially through their sponsible therefor. It was also argued 
rehtions with the defendant corpora- that the amount at stake in the litiga- 
tioa, the affidavits showing that opin- tion was so large in proportion to the 
ions hostile to the defendant were amount of taxes annually collected in 
frequently expressed, etc. the city that every taxpayer of the city 

In Hal] V. Chattanooga Agricultural and county had a direct pecuniary in- 

Works. 48 Fed. Rep. 599, which was terest sufficient in amount to create a 

an equity case, the defendant's affi- presumption of bias, 

davit alleged that the plaintififs in- Instances of Cases Held Not SemoT- 

tended to demand a jury trial in order able. — In Dennison v. Brown, 38 Fed. 

10 appeal to the prejudice of the jurors Rep. 535, where the affidavit alleged 

against the defendant corporation and that the defendant was a stranger in 

its nonresident stockholders. It con- the county and that the plaintiff was 

tained further averments of facts tend- well known there as a lawyer, politi- 

iog to show prejudice, and the court cian, and ex-candidate for the office of 

fonnd averments in the plaintiff's bill attorney-general, Wallace, J., held that 

which lent support to the averments of there was clearly no ground for 

the affidavit. The application for re- removal, 

moval was granted by Key, J. In Carson, etc., Lumber Co. v. Holtz- 

In Herndon v. Southern R. Co., 76 claw, 39 Fed. Rep. 885, Thayer, J., de- 
Fed. Rep. 398, a removal was ordered nied an application for removal on 
by Seymour, J., upon conflicting affi- conflicting affidavits in a case which 
davits epitomized in the opinion of the was not calculated to excite or affect 
court, which were held sufficient to any special or local interest, 
show a local hostility to the defendant 1. In Herndon v. Southern R. Co., 
railroad company, though the preju- 76 Fed. Rep. 398, Seymour, J., said: 
dice was perhaps ** unknown to very ** Upon reading the affidavits in this 
many of the good citizens " of the case I have not been convinced that 
county. The court's reluctance to the local influence of plaintiff is such 
order a removal was lessened by*' the as constitutes a sufficient cause for re- 
fact that no serious delay, expense, or moval. I am, however, of the opinion 
inconvenience " could result, as the that the action should be removed on 
federal court would sit not far from the ground of local prejudice " against 
the place where the state court would the defendant, 
have been held. 2. ** If there be local prejudice the 

In Tacoma v. Wright, 84 Fed. Rep. cause may be removed, or if no local 
836, a suit in equity, the court granted prejudice exists, and there be local in- 
a removal upon affidavits '* made by fluence so powerful and operative as 
reputable persons, who are well in- to prevent the defendant from obtain- 
formed, and in whom this court has ing justice, he may remove. If there 
confidence," tending to prove that in be prejudice against the defendant, or 
the city of Tacoma during several if the influence and power of the plain- 
years preceding the commencement of tiff or any other local influence domi- 
tbe suit there had been public denun- nate the public mind at the place 

245 Volume XVI 11. 



Ttom State REMOVAL OF CA USES. to F«d«rai Cowti. 

to suits both at law and in equity,^ and authorizes the removal 
of a suit upon a proper showing of the prejudice of judges,* even 
where the issue to be decided in the state court is one of pure 
law.' However, to warrant removal of cases triable by the court 

where the suit is instituted, so that he sufficient which did not tend to prove 

cannot have justice, the cause may be that the decision of the Supreme Court 

removed." Fer Key, J., in Huskins would also be affected by prejudice and 

V. Cincinnati, etc., R. Co., 37 Fed. local influence, he said: " We do not 

Rep. 507. agree in this view. It rests on the 

1. Act of 1887-1888, 24 U. S. Sut. at false premise that no injury is done to 

L- 553* c- 373» §3*1 35 U. S. Stat, at L. a party litigant when a court of origi- 

435, c. 866, ^3, so construed in Detroit nal jursidiction, swayed by prejudice 

V, Detroit City R. Co., 54 Fed. Rep. 5. or local influence, decides a case 

Tacoma v. Wright, 84 Fed. Rep 836, is against him, if the case involves only 

also an instance of removed of an an appealal>le question of law. He is 

equity case. entitled on general principles to have 

An Approved Precedent of a Yorified his rights justly determined in every 

Petition for removal in an equity case tribunal whose aid or protection the 

will be found in Bonner v. Meikle, 77 law gives him, no matter whether the 

Fed. Rep. 485, where a removal was judgment is to depend on disputed 

ordered. facts or law. It is an injustice to him 

8. Bonner v. Meikle, 77 Fed. Rep. to be compelled to appeal to a higher 
485, was an action by code complaint court to right a wrong done him by the 
praying for a decree quieting title and prejudice of the trial judge.*' Compare 
also for a judgment for damages. It Duncan v. Gegan, loi U. S. 810, a 
does not appear whether the case was foreclosure case which had proceeded 
to be tried by the court or by a jury, to a decree before the petition for re- 
but prejudice of the state judges was moval vias filed under the former re- 
alleged. A removal was granted by moval act, where the court said : "We 
Hawley, J., on averments substantially confess it is not easy to see how a 
set forth m the statement of the case, party could swear to his belief that 
showing inflammatory public speeches, from prejudice or local influence he 
inimical discussions of the defendants* could not obtain justice in the state 
rights '* by stage drivers, public car- court, when all that court had to do 
riers, bar and saloon keepers, and was to divide the proceeds of a sale by 
others throughout said county," etc. paying them out in a certain way, and 

Where the State Judge Disregardi an as to which there was apparently, no 

Order of Bemoval duly made and served possible chance of dispute." See also 

upon him, and proceeds to trial and Duff v. Duff, 31 Fed. Rep. 773. In 

judgment in the cause, it is very strong Miller v. Finn, i Neb. 257, the court 

proof of his prejudice. Walcoti v. pronounced absurd the proposition that 

Watson, 46 Fed. Rep. 529. prejudice or local influence could be 

8. Detroit v. Detroit City R. Co., 54 predicated of a court of final appellate 

Fed. Rep. i, was a bill in equity by the jurisdiction. 

city of Detroit to obtain a decree that Sefnsal to Follow Federal Beeliions. — 
the franchise of the defendant railroad The refusal of the Supreme Court of a 
company had expired by virtue of a state to recognize or follow the adjudi- 
limitation in the state constitution, and cation of the Supreme Court of the 
to enjoin the defendant from further United States on the question of the 
occupation of the streets of the city, lien of certain railroad equipment 
Taft, J., said: " We do not see why'a bonds does not show prejudice or local 
judge, if influenced improperly against influence which will justify the re- 
a party, may not yield to such influ- moval of another suit in the state court 
ence as well in his decisions of legal involving the same question. Adel- 
questtons as in his conclusions of fact.** bert College v, Toledo, etc., R. Co., 47 
And replying to the contention that Fed. Rep. 844, where Jackson, J., 
inasmuch as the defendant could carry said: '* If in any case a state court's 
the case to the Supreme Court of the decision can be made the ground of re- 
state in the event of an adverse decree, moval, it must be alleged and shown 
and therefore that no showing could be that such decision proceeded not from 

246 Volume XVIIL 



Trm 8Uta REMOVAL OF CA USES. to Ftdml Oonrts, 

the inflammatory state of public opinion or other indicia of preju- 
dice must be extraordinary.^ In states having an elective 
judiciary, the fact that local prejudice may affect the electoral 
constituency is not alone a sufficient ground for removal;* but 
the fact is of great importance where the infected community is 
the plaintiff in the suit.' 

(3) Prejudice Avoidable by Change of Venue or Judge — Cliuige 
of Yoniu. — The obnoxious prejudice or local influence must affect 
every state court to which the defendant has a right to remove 
the cause on that ground."^ It is held in some of the circuits 

error or mistatce of law, but from that stances, judges elected by a community 

improper bias or unreasonable predi- must be presumed to be affected by a 

lection which constitutes ihe * preju- prejudice shown to pervade that entire 

dice ' or* local influence * contemplated community, so as to make it unjust to 

by the law." See also In re Breckin- compel a nonresident to try his contro- 

n<lS»Ct 31 ^ch. 489. versy with the community before its 

1. In TurnbuU Wagon Co. v. Linthi- own judges." 
cum Carriage Co., 80 Fed. Rep. 4, an 4. See the language of the statute 
equity case, a removal was denied on quoted supra^ p. 344, note 3. 
affidavits showing a remark by the In Rike v, Floyd. 42 Fed. Rep. 247, 
judge, possibly indiscreet, but evincing the affidavit was held insufficient be- 
no real bias, and affidavits about news- cause it made no showing as to preju- 
paper publications in the county, de- dice or local influence in counties to 
nouncing the defendants for alleged which the cause might be removed, al- 
fraudulent transactions. " It has not though the state law left the removal 
come to this," said the court, " that the to the discretion of the court, 
federal courts will remove cases merely In Robison v. Hardy, 38 Fed. Rep. 
because of newspaper articles denun- 49, Blodgett, J., denied an application 
ciatory of individuals." See also Rike for removal because the showing of 
V. Floyd, 42 Fed. Rep. 247, where re- prejudice, etc., in other counties was 
moval of a chancery case to be tried by insufficient, although the state statute 
the court was denied. authorizing a change of venue appar- 

8. Turnbull Wagon Co. v. Linthi- ently left it to*the discretion of the 

cum Carriage Co., 80 Fed. Rep. 4, court. See also Amy v. Manning, 38 

where Hammond, J., said that the case Fed. Rep. 537. 

of Detroit v, Detroit City R. Co., 54 [f the state law gives to the def end- 
Fed. Rep. I, " does not decide any such ant an absolute right to a change of 
doctrine." venue, the showing of prejudice in the 

8. In Detroit v. Detroit City R. Co., other state courts must be made. 

54 Fed. Rep. i, described supra^ p. 246, Southworth v, Reid, 36 Fed. Rep. 454, 

note 3, the removal was sustained where Bunn, J., said that in view of 

upon an affidavit convincing the court the law of Wisconsin it would rarely 

that the citizens of the city where the happen that a proper case for removal 

cause was to be tried were prejudiced of a cause from that state could be 

against the defendants, and had pre- made. In Maher v. Tower Hotel Co., 

judged the case against them, and that 9.^ Fed. Rep. 225, the court remarked 

a decision by the court in favor of the that there was no proper showing as to 

defendants would cause many electors prejudice, etc., in other courts of the 

to vote at the approaching judicial elec- state (Illinois). 

tion against the re-election of the j udge Pnqjndloe Sufficiently CKhown. — In Wal- 

rendering such decision, although it cott v. Watson, 46 Fed. Rep. 529, the 

does not appear in the report of the case had been effectually removed by 

case that any particular judge was a an order duly made and served upon 

candidate for re-election. The pith of the judge of the state court. Never- 

tbe case seems to be in the last clause theless the state judge proceeded to try 

of the following quotation from the the case, and rendered judgment 

opinion of the court, per Taft, J., hold- against the party who had petitioned for 

lag that " under extraordinary circnm- removal. By the state law each judge 

1^7 Volume XVIII. 



nrom Bteto REMOVAL OF CA USES. lo Federal ConrU. 

that this condition is inoperative where a change of venue is 
merely discretionary with the state court. ^ 

COuukge of Judge. — When the defendant cannot demand a change 
of judge as a matter of right, the fact that the state judge has a 
discretionary power to invite a judge of another circuit or county 
to hear the case will not affect the question of removal.* 

c. Between Whom Prejudice, etc.. Must Exist. — The 
prejudice or local influence contemplated by the statute is only 
that between adverse parties to the suit.' 

d. Who May Remove Suit. — a FUintur cannot Bemove the caut 

for prejudice or local influence.* It can be removed only by a 

had power to hold court in any county 4. Campbells. Collins, 62 Fed. Rep. 
of the state. Hawley, J., in denying a 849 {following Fisk v. Henarie, 32 Fed, 
motion to remand, said: '* The fact Rep. 417], where the petition for re- 
that the same judge who tried this case moval was filed upon the mistaken 
after the order of removal was made theory that the words in the removal 
to this court was authorized to hold act of 1887-1888, ** at any time before 
court in any county of the state, and the trial of any suit which is now pend- 
might have presided at the trial if this ing in any Circuit Court or may here- 
cause had been removed to any other after be entered therein, and which has 
county in the state, is, under the facts been removed to said court from a 
presented in this case, of itself suffi- state court on the affidavit of any party 
cient upon this point to justify the plaintiff," etc., amounted to a grant by 
order of removal;" as against an ob- implication to the plaintiff of a right to 
jection that justice might be obtained remove a cause in the same way as a 
in some " other Ftate court." defendant may remove under the pro- 
It Tacoma v. Wright, 84 Fed. Rep. visionsof the next preceding paragraph 
836 [cfiticising Rike v. Floyd, 42 Fed. of the same act; Meyer Bros. Drug 
Rep. 248], where the court said: Co. z^. Malm, 47 Kan. 762, holding that 
** State laws which merely authorize a the plaintiff could not remove the cause 
change of venue without giving to a though he was a nonresident and a cit- 
defendant the right to remove a cause izen of another state. See the Act of 
are not to be considered as affecting in 1887/-1888. quoted in the following note. 
any way a defendant's right to remove Defendant Piling Gross-biU in federal 
a cause into a United States Circuit Conrt. — Where the cau&e is removed 
Court;" Smith V. Crosby Lumber Co., by a defendant in a suit in equity 
46 Fed. Rep. 824; Herndon v. South- wherein the bill seeks affirmative relief 
ern R. Co., 73 Fed. Rep. 308; Bonner against him, and he files a cross-bill in 
V. Meikle, 77 Fed. Rep. 485. the federal court seeking affirmative 
8. Detroit v, Detroit City R. Co., 54 relief, the cause will not be lemanded 
Fed. Rep. i. Whether a statutory on the theory that he has thus become 
provision that another judge may be a plaintiff instead of a defendant, 
designated when an objection is tenable Jackson, etc., Co. v. Pearson, 60 Fed. 
against the one before whom the rase Rep. 113. 

is pending can be regarded as ma- A Claimant Against a Cennty, where a 

terially affecting the right of removal taxpayer appeals from an allowance of 

was left undecided in Turnbull Wagon the claim by county supervisors under 

Co. V. Linthicum Carriage Co., 80 Fed. the provisions of the Nebraska statute. 

Rep. 4. is a plaintiff in the appeal, though 

8. " Beyond doubt the existing act appellee by the express terms of the 

[of 1887-1888], like every act which statute, and cannot remove the case, 

preceded it, does not authorize one Tullock v. Webster County, 40 Fed. 

defendant to remove a suit into the Rep. 706. 

Circuit Court of the United States from Prior Semoyal Acts. — Under the Act 

a state court upon the ground of preju- of 1867, 14 U. S. Stat, at L. 558, c. 196, 

dice or local influence between himself and under Rev. Stat. U. S., § 639, re- 

and other defendants." Hanrick v. moval could be 'had by the plaintiff as 

Hanrick, 153 U. S. 197. well as by the defendant, if he was not 

248 Volume XVIII. 



fnat 8Ute REMOVAL OF CA USES. to TMml Oonrti. 

defendant.* He must also be a citizen — an alien, whether a 

natural person or a corporation, cannot remove the cause on this 
ground ^ — and a citizen of a state ' other than that in which the 
suit is brought.'* 

A Corporatioii Defendant has the same privilege of removing the suit 
as a natural person.' 

a citizen of the state in which the suit which could in no wise have affected 

was brought. Neale v. Foster, 31 Fed. his rights had he kept aloof from the 

Rep* 53: Delaware County v. Diebold controversy. Williams v. Williams, 

Safe, etc., Co., 133 U. S. 473; Akerly 24 La. Ann. 55. See also Martin v, 

V. Vilas, I Abb. (U. S.) 2S4; Sands v. Coons, 24 La. Ann. 169. 

Smith, I Abb. (U. S.) 368; Meadow 8. New Orleans, etc., R. Co. v. 

Valley Min. Co. v. Dodds, 7 Nev. 143. Rabasse, 44 La. Ann. 178; Dahlonega 

Bnt a plaintiff who was a citizen of the Co. v, Frank W. Hall Merchandise 

state where the suit was brought could Co., 88 Ga. 339. See the language of 

not remove it. Hurst v. Western, etc., the statute quoted in the preceding 

R. Co., 93 U. S. 71. note. 

1. Act of March 3, 1887, 24 U. S. An Unnatoraliied Indian residing with 

Stat, at L. 553, c. 373, § 2; Act of Aug. his tribe within the limits of the United 

13, 18S8, 25 U. S. Stat. atL. 435,c. 866, States is not a citizen and cannot re- 

§a. which provides for removal only move a suit on the ground of prejudice 

by *" any defendant, being such citizen or local influences. Paul v, Chilsoquie, 

of another stace." 70 Fed. Rep. 401. 

Ooanterdaim ConTerting Plaintiff into Prior SemoTal Acts. — Under the Act 
Defendant. — In Carson, etc., Lumber of 1867, 14 U. S. Stat, at L. 559, c. 196, 
Co. V. Holtzclaw, 39 Fed. Rep. 578, it which provided for removal by ** such 
was held that a nonresident plaintiff citizen of another state," it was self- 
suing in the state court against whom evident that an alien could not remove 
a counterclaim is brought 13 a'* defend- it. King v. Cornell, 106 U. S. 395; 
ant " within the provisions of the act Crane v. Reeder, 28 Mich. 527, 30 
and entitled to a removal so far as his Mich. 460; Stinson v. St. Paul, etc., R. 
attitude to the case is concerned. The Co., 20 Minn. 492. Likewise under 
same ruling was made in Walcott v. Rev. Stat. U. S., § 639, subdiv. 3, 
Watson, 46 Fed. Rep. 529, where the which provided that " when a suit is 
defendant in his answer set up a coun- between a citizen of the state in which 
terclaim upon which he might have it is brought and a citizen of another 
sned the plaintiff and obtained affirma- state, it may be so removed on the 
live relief. Distinguishing West v, petition of the latter." Grand Trunk 
Aurora City, 6 Wa11.(U. S.) 141, on the R. Co. v, Twitchell, 59 Fed. Rep. 727; 
ground that in the latter case the de- Burlington, etc., R. Co. v, Dunn, 122 
fendant's pleading was wholly in the U. S. 514. 

nature of a defensive plea. See also 8. " The word ' state * as used in 

Clarkson v. Manson, 4 Fed. Rep. 260. this act [Act of 1887-1888] means a 

Compare cases cited infra^ I. 18. e. (3) state of the United States. A citizen 

Amount in Counterclaim or Set-off. of a territory is not a citizen of a state. 

Amendment instate Court Dismieiing nor is a citizen of the District of Colum- 

Defimdant. — The state court may, be- bia." Dahlonega Co. v. Frank W. 

fore petition for removal hied in the Hall Merchandise Co., 88 Ga. 339. 

federal court, allow the plaintiff to And a citizen of a territory could not 

strike out the name of (he only non- remove a suit under the local prejudice 

resident defendant, and thus prevent clause of Rev. Stat. U. S., § 639. 

any removal. Rome, etc., Constr. Co. Darst v, Peoria, 13 Fed. Rep. 561. 

V. Smith, 84 Ga. 238. 4. Paul r. Baltimore, etc., R. Co., 44 

Bemoval 1^ Intervener. — Under the Fed. Rep. 513. See also Rome, etc.. 

Act of 1867 it was held that a removal Constr. Co. v. Smith, 84 Ga. 238; Gavin 

could not be had by one who was v, Vance. 33 Fed. Rep. 85. 

neither plaintiff nor defendant, but 5. It is unnecessary to cite the 

only an intervener voluntarily making numerous cases of removals by cor- 

himsclf a pnrty in a suit between citi- porations. Detroit v. Detroit City R. 

zens of the same state, the result of Co., 54 Fed. Rep. i, is one. And see 

349 Volume XVIIL 



Srom Bteto REMOVAL OF CA USES. to Federal Courto. 

Jdnder in Applioation for Semoral. — Under the former removal acts 
all the defendants had to unite in the petition for removal.* 
Now any defendant having the requisite qualification in respect 
to citizenship may remove the cause if the other necessary con- 
ditions exist.* 

e. Time for Making Application — Before Trial. — The Act 

of 1867 relating to removal on the ground of prejudice or local 
influence required the petition for removal to be filed ** at any 
time before the final hearing or trial of the suit;"' the third sub- 
division of section 639 of the United States Revised Statutes,* 
** at any time before the trial or final hearing of the suit.'** 
Under both of those acts it was often ruled that if the trial court 
had set aside a verdict and granted a new trial, or if the appel- 
late court had reversed the judgment and remanded the case for 
trial de novo, it was not too late to remove the case.* Now, 

under the prior local prejudice acts, in time under the Act of 1867 and Rev. 

Farmers' L. & T. Co. v. Maquillan. 3 Stat. U. S., § 639, see Field v, Wil- 

Dill. (U. S.) 379; Mix V. Andes Ins. Hams, 24 Fed. Rep. 513; Sutherland v, 

Co., 74 N. Y. 53, overruling Coo\i^ v, Jersey City, etc., R. Co., 22 Fed. Rep. 

Stale Nat. Bank, 52 N. Y. 9(5. 356; Melendy v. Currier, 22 Fed. 

1. See supra^ p. 241. Rep. 129; Osborn t/. Osborn, 5 Fed. Rep. 

2. Jackson, etc., Co. v. Pearson, 60 389; Akerly v. Vilas, i Abb. (U. S.) 
Fed. Rep. 126. See supra^ p. 242. 284; Sims v. Sims, 17 Blatchf. (U. S.) 

8. 14 U. S. Stat, at L. 556, c. 196. 369; Kellogg v. Hughes, 3 Dill. (U. 

4« The third subdivision was a sub- S.) 357; Minnett v. Milwaukee, etc., 

stantial re-enactment of the Act of 1867. R. Co., 3 Dill. (U. S.) 460; Whitehouse 

5. It was essentially the language of v. Continental F. Ins. Co., 2 Fed. Rep. 
the Act of 1866, 14 U. S. Slat, at L. 307, 498, 14 Phila. CPa.) 431; Elliott v, 
c. 288, providing for the removal of Stocks, 67 Ala. 290; Sharp v, Gutcher, 
separable controversies, and was not 74 Ind. 357; Burson v. National Park 
repealed by the Act of 1875, 18 U. S. Bank, 40 Ind. 173; Nye v. Northern 
Stat, at L. 470, c. 137, which said noth- Cent. R. Co., 24 Hun (N. Y.) 556; 
ing about removal for prejudice or local Douglas v. Caldwell, 65 N. Car. 248; 
influence. In Delaware County v. Clark v. Delaware, etc.. Canal Co., ii 
Diebold Safe, etc., Co., 133 U. S. 473, R. I. 36; Rathbone Oil Tract Co. v. 
a claim against a county in Indiana Ranch, 5 W. Va. 79. For cases hold- 
was heard before county commission- ing that it was too late, see Darst v. 
ers and disallowed. The plaintiff ap- Peoria, 13 Fed. Rep. 561; Boggs v, 
pealed to the Circuit Court of the Willard, 3 Biss. (U. S.) 256; Farmers* 
county, and immediately after the entry L. & T. Co. v, Chicago, etc., R. Co., 9 
of the appeal in that court and before Biss. (U. S.) 133; Fleming v. Philadel- 
further proceedings there filed a peti- phia F. Assoc, 76 Ga. 678; Hall v, 
tion for removal under Rev. Stat. Ricketts, 9 Bush (Ky.) 366; Williams 
U. S., § 639, on the ground of prejudice v. Williams, 24 La. Ann. 55; Adams' 
and local influence. It was held ihat Express Co. v. Trego, 35 Md. 47; 
the petition was in time. For a some- Miller v. Finn, i Neb. 254; Whiltier v, 
what similar case under the same act Hartford F. Ins. Co., 55 N. H. 141; 
see Hess v. Reynolds, 113 U. S. 73. W^ashington, etc., R. Co. v, Alexan- 
Compare Stevenson v. Williams, 19 dria, etc., R. Co., 19 G rati. (Va ) 592; 
Wall. (U. S.) 572. But every trial was Jones v. Foster, 61 Wis. 25. 
final until vacated in some form. 6. Fiske v, Henarie, 142 U. S. 459 
Hence the application could not be \citing Vannevar v. Bryant, 21 Wall, 
made after judgment and while a (U.S.) 41; Jifkins f. Sweetzer, 102 U. 
motion for a new trial was pending and S. 177; Baltimore, etc., R. Co. v. 
undisposed of. Vannevar v. Bryant, Bates, 119 U. S. 467, and esses cited]; 
21 Wall. (U. S.) 41. For other cases Kellogg v. Hughes, 3 Dill. (U. S.) 357; 
where the application was held to be Hewitt v. Phelps, 105 U. S. 393* 

250 Volume XVIII. 



Vnm 8tet« REMOVAL OF CA USES. to Federal Oonrte. 

however, by the Act of 1887-1888, the petition is to be filed 
" at anytime before the trial" of the suit, and these words 

receive the same construction as the recognized interpretation 
of the same words in the Act of 1875,* providing for removal on 
the ground of diverse citizenship, namely, that the petition must 
be filed before the first trial of the cause.* But up to the time 

of a first trial in any form on the merits,' whether it occurs at 
one term or another,* the right of removal remains, and the 

Schraeder Min., etc., Co. v. Packer, various phases three times in the Su- 

129 U. S. 688; Dart v. McKinney, 9 preme Coun of the state, prior to the 

Blatchf. (U. S.) 359; Akerly v, VUas, application for removal, and it was 

2 Biss. (U. S.) no; Brayley v. Hedges, held that the application was too late. 

53 Iowa 582; Dart v. Walker, (C. PI. Field and Harlan, JJ., dissented. This 

Gen. T.) 43 How. Pr. (N. Y.) 29, 4 case was followed in Farmers', etc., 

Daly (M. Y.) 188; Rosenfield v. Con- Nat. Bank v. Schuster, 86 Fed. Rep. 

diet, 44 Tex. 464. See also Metropoli- 161, where the petition was filed after 

tan L. Ins. Co. v, Ethier, 44 Mich. 144. the cause had been tried and a mistrial 

Contra^ Continental Ins. Co. «/. Kasey, entered, and was held too late. See 

27 Gratt. (Va.) 216. And see Galpin v. also Whelan v. New York, etc., R. 

Critchlow, 112 Mass. 339. Co., 35 Fed. Rep. 849; Davis v, Chi- 

But the petition could not be granted cago, etc., R. Co., 46 Fed. Rep. 307; 

where it was filed before the right to a Hakes v. Burns, 40 Fed. Rep. 33; 

new trial had been perfected abso- Continental Ins. Co. v. Kasey, 27 

lately, Chicago, etc., R. Co. v, Mc- Gratt. (Va.) 216. 

Kinley, 99 U. S. 148; nor where the re- 8. Durkee v, Illinois Cent. R. Co., 81 

▼ersal on appeal was accompanied with Fed. Rep. 2; Huskins v. Cincinnati, 

a specific direction to the court below etc., R. Co., 37 Fed. Rep. 504. 

to dismiss the suit, Boggs v. Willard, After Bemoyal and Remand on Another 

70 111. 315. Chronnd. — It seems that where a case 

1. See the case of Fisk v. Henarie, is removed for diverse citizenship and 

142 U. S. 459, where the court, speak- remanded, it is no impediment to a 

Ing of the Actof T887-1888, said: *' In seasonable application to the federal 

view of the repeated decisions of this court for removal on the ground of 

court in exposition of the Acts of 1866, prejudice or local influence. See In re 

1867, and 1875, it is not to be doubted Cilley, 58 Fed. Rep. 977. 

that Congress, recognizing the inter- 4. Detroit v. Detroit City R. Co., 54 

pretation placed on the word * final ' in Fed. Rep. 10, where Taft, J., showed 

the connection in which it was used in very clearly that the language of 

the prior Acts, and the settled con- Fuller, C. J., in Fisk v, Henarie, 142 

etruction of the Act of 1875, delib- U. S. 459, was not to be construed as an 

erately changed the language * at any expression of opinion that the applica- 

time before the final hearing or trial of tion must be made before or at the term 

the suit * or ' at any time before the at which the cause could first be tried, 

trial or final hearing of the cause ' to See also Cox v. East Tennessee, etc., 

read ' at any time before the trial there- R. Co., 62 Ga. 163. On the other hand 

of,' as in the Act of 1875, which re- Caldwell, J., in Thurber v. Miller, 67 

quired the petition to be filed before or Fed. Rep. 378, made the following 

at the term at which the cause could statement, which, however, wSjS purely 

first be tried and before the trial there- obiter : "As to the time when the ap- 

of.*' This case wvls followed \n Durkee plication for removal must be filed, the 

V. Illinois Cent. R. Co., 81 Fed. Rep. same clause of the actin express terms 

I; Hobart v, Illinois Cent. R. Co., 81 declares it may be done ' at any time 

Fed. Rep. 5. before the trial thereof,* but the Su- 

8. Fisk V, Henarie, 142 U. S. 459 preme Court, taking into consideration 

[reversing 32 Fed. Rep. 417, and over- all the provisions of the act, and the 

ruling in effect Brodhead v. Shoemaker, previous legislation on the subject, and 

44 Fed. Rep. 518], where the case had the judicial expositions thereof, held 

been tried three times before a jury in that this language of the act ought not 

the state court, and had been heard in to receive a literal interpretation, but 

251 Volume XVIII. 



Turn State REMOVAL OF CA USES. te Fedml Cowti. 

cause must be actually on trial in some form in the orderly 
course of proceeding, dl parties acting in good faith^ before the 
right of removal is gone.^ 

Before Trial Has Begnn. — The words ** before the triaP' mean 
before the trial has begun. • If a jury has been called, though 

that it should be construed as requir- ware R. Constr. Co. v, Davenport, etc., 

ing the petition * to be filed before or R. Co., 46 Iowa 406; Galpin v. Critch- 

at the term at which the cause could low, 112 Mass. 341. See also St. An- 

first be tried, and before the trial there- thony Falls Water-Power Co. v. King 

of.' Fisk V, Henarie, 142 U. S. 459.*' Wrought-iron Bridge Co., 23 Minn. 

A pertinent quotation from the opinion 186. 

of the Supreme Court in the case *' Whenever the investigation of the 

last cited will be found supra^ p. 251, facts of a case simply, or the facts in 

note I. connection with the law, is entered 

1. Removal Cases, 100 U. S. 473, upon by the court alone, or by the 
where the court said: '* No mere at- court and jury, the trial may be said 
tempt of one party to get himself on to have begun." Lewis v. Smyihe, 2 
the record as having begun the trial Woods (U. S.) 119, holding that it was 
will be enough." Accordingly it was too late to file a petition and bond for 
there held that a petition for removal removal after the pleadings had been 
was seasonably filed by the defend- read and the evidence submitted to the 
ant in an equity suit on the hearing court. 

of a merely interlocutory application In Watt v. White, 46 Tex. 340, the 

although the plaintiff offered evidence petition for removal, under the Act of 

on the merits — '* did not keep himself 1875, was held too late where it was 

inside the orderly course of proceed- not filed until after the cause had been 

ings *' — which, however, had not been regularly reached upon the docket, and 

accepted when the petition for removal called by the court for trial, and after 

was filed. See also Jif kins t/. Sweetzer, the plaintiffs had announced ready, 

102 U. S. 179. and while the court was awaiting the 

2. The Act of 1867 provided for the presentation of an application for con- 
filing of the petition for removal '* be- tinuance by the defendant for the 
fore the final hearing or trial." In preparation of which time had, at his 
Adams' Express Co. v, Trego, 35 Md. request, been given by the court. The 
47, the trial had actually commenced, court said: " It would give an unfair 
and several questions in its progress advantage to the defendant if he could 
had been decided before the petition first ascertain whether the plaintiff was 
for removal was filed, and it was held ready, and if not, could force him into 
that the application was too late. The trial, while he would be neither bound 
court said: '* The application should to try or continue the case. Parties 
have been made before the hearing or should not be allowed to speculate in 
trial commenced; for otherwise it this way with the court or their adver- 
would be impossible to determine at saries." 

what stage of the trial the application In Maloy v. Duden, 25 Fed. Rep. 673, 

would be proper. Could it be made at when the cause was called for trial in 

the last stage of the trial, after all the the state court on the day calendar the 

legal questions had been decided by defendant objected that the cause was 

the court, and the facts submitted to not in a condition for trial because the 

the jury, but before the verdict found? time for serving an amended answer 

We can hardly suppose that any one had not expired under an order ob- 

would seriously attempt to maintain tained from one of the judges of the 

such a proposition. And if not in such court granting further time for that 

a case, at what prior stage of the trial purpose. Thereupon, a motion to va- 

would the application be admissible? cate that order, notice of which mo- 

We think it clear that it is not at tion had been given by the plaintiff 

any time before the conclusion, but prior to the calling of the cause, was 

at any time before the commencement directed by the trial judge to be tried 

of the trial, that the application to re- in another part of the court before the 

move must be made." Lewis v. judge engaged in hearing motions, and 

Smythe, 2 Woods (U. S.) 117; Dela- further proceedings were suspended to 

262 Volume XVIIL 



Fran Btato REMOVAL OF CA USES. to Federal Ckmrte. 

not yet sworn, the trial has begun ; ^ and where the application 
is made after the filing of an amended declaration upon the trial, 
whereby a new issue is made, and before pleading thereto, it is 
still too late.* 

What Goiutitatea TziaL — A default stands in the place of a trial 
in a litigated action.* A hearing upon a demurrer to the plain- 
tiff's pleading on the ground that it does not state facts sufficient 
to show a cause of action is a trial, and precludes a removal sub- 
sequent to the ruling either sustaining or overruling such demur- 
rer;* but it is otherwise where the demurrer is special and 
addressed to merely formal defects.* The filing of an answer is 

await the decision on the motion; it after the entry of a default and before 
was held that a petition for removal the default was vacated, 
filed at that stage of the cause was be- 4, Maherv. Tower Hotel Co., 94 Fed. 
fore trial actually begun and therefore Rep. 225; Hobart v, Illinois Cent. R. 
in lime. Co., 81 Fed. Rep. $, /o/Uwing Alley v, 
Beference After Final Hearing. — Where Noit, iii U. S. 472, and Laidly v. 
the main issue has been decided upon Huntington: 121 U. S 179, which latter 
a final hearing a petition for removal cases were decided under the Act of 
is too late although for the convenience 1875; Scharff r. Levy, 112 U. S. 711; 
of the court a reference is made to a Gregory v. Hartley, 113 U. S. 742; 
master to take accounts and settle the Boyd v. Gill, 19 Fed. Rep. 145; Lang- 
details of the final decree. Such refer- don v. Fogg, 18 Fed. Rep. 5: Lookout 
ence is not the beginning of a new Mountain R. Co. v. Houston, 32 Fed. 
hearing. Jifkins v. Sweetzer, 102 U. S. Rep. 711; Wilson v. Rock Island Paper 
177. Co., 20 Fed. Rep. 705, where the court 

1. See St. Anthony Falls Water- said: *' He [the defendant] had thus 
PowerCo. fA King Wrought-iron Bridge tried an experiment with the court, 
Co., 23 Minn. 186. and had found it against him on the 

After Jury Sworn. — It is too late to merits of his case; " St. Louis, etc., R. 

file a petition for removal after the Co. v. Weaver, 35 Kan. 412; Miller v, 

jurors have been examined on w«> </«>^ Kent, (Supm. Ct.) 60 How. Pr. (N. Y.) 

and accepted. Anglo-American Pro- 451. Contra^ Miller v. Tobin, 18 Fed. 

vision Co. v, Evans, 34 Neb. 44. Rep. 609; Hone v. Dillon, 29 Fed. Rep. 

Yulee V. Vose, 99 U. S. 539 [reversing 465. 
Vose V. Yulee, 64 N. Y. 449, which A judgment sustaining a demurrer 
affirmed 4 Hun (M. Y.) 628], is some- to the defendant's answer and dismiss- 
times cited in text books on removal of ing his cross-petition was held to con- 
causes to the proposition that a trial stitute a trial. Meyer v, Norton, 9 
has not begun though the jury has been Fed. Rep. 433. 

sworn; but it lends no support to that If the Plaintiff Amends His Pleading, by 

statement. In that case the petition leave of court, after an order sustaining 

and bond for removal were duly filed, the defendant's demurrer on the 

and when the trial came on four days ground stated in the text, the time for 

later and the jury was sworn, counsel removal is not extended, though the 

simply directed the attention of the amendment introduces a technically 

trial court to the fact that proceedings new cause of action. Hobart e/. Illinois 

for removal had already been taken, Cent. R. Co., 81 Fed. Rep. 5, dis^ 

and the federal Supreme Court, in its tinguishing Union Pac. R. Co. v, Wyler, 

discussion of the case, clearly declares 158 U. S. 285. 

that the case was efifectually removed Demnrrant Defknlted. — Where the 

by the original filing of the petition and issue raised by a demurrer was noticed 

bond. for a hearing and the demurrant de- 

2. Adams' Express Co. v. Trego, 35 faulted on the demurrer, it was held 
Md. 47. to constitute a trial. Bright v. Mil- 

8. McCallon v. Waterman, i Flipp. waukee, etc., R. Co., (Supm. Ct. Spec 
(U. S.) 651, holding that the cause could T.) i Abb. N. Cas. (N. Y.) 14. 
not be removed under the Act of 1875 5. Richards v. Rock Rapids, 31 Fed. 

d58 Volume XVIII. 



JProm Bteto REMOVAL OF CA USES. to Fadml Gonrti. 

not a trial within the meaning of the statute ; ^ nor is the entry 
of ex parte orders of an interlocutory nature • or a proceeding 
merely preliminary or ancillar)' tD the main cause of action and 
not involving a decision on the merits ' a trial ; and a hearing 
before auditors or commissioners who determine nothing finally, 
but whose report is by statute only prima facie evidence upon a 
subsequent trial before the court or jury, is not a trial.* 

Ko Duty to Delay Trial — Under the prior removal acts it was held 
that the state court was under no legal obligation to delay a trial 
to enable a part}' to prepare a petition for removal.* 

Waiyer of Oljection to Delay. — Objection that the application for 
removal was not made in time may be waived by delay in mov- 
ing to remand.* 

/. Application to Be Made to Federal Court. — 
Under the Act of 1887-1888 the application must be made to 
the federal Circuit Court for the district in which the suit is 

Rep. 507. See also Boyd v. Gill, 19 but " to take testimony and report the 

Fed. Rep. 150. same," it was held that the trial had 

1, Durkee v. Illinois Cent. R. Co.. 81 not begun and a petition for removal 
Fed Rep. 2. was in time. Carson v, Hyatt, 118 U. 

2. McHenry v. New York, etc., R. S. 289, where the court said: ** In its 
Co., 25 Fed. Rep. 67. effect this was nothing more than an 

8. ** No argument or decision of agreement for the appointment of an 

questions merely preliminary, or ques- examiner before whom the testimony 

tions of pleading, except such as settle in the suit, which was in its nature a 

and end the case (as where the facts suit in equity, could be taken. The 

are admitted and the case turns upon master had no authority to find either 

the law as applied to the facts), is the facts or the law. His duty was to 

meant by the word * trial.' ** Lewis take and write out the testimony to be 

V, Smythe, 2 Woods (U. S.) 119. reported to the court for use on the 

The Appointment of, a Temporary Be- trial when it should be begun." See 

oeiTer to maintain the status quo^ the also Ketchum v. Black River Lumber 

issuance of a temporary injunction, Co., 4 Fed. Rep. 143. 
and a subsequent discharge of the re- GompnlBory Arbitration. — In Thorne 

ceiver on motion of the defendant, the v. Towanda Tanning Co., 15 Fed. Rep. 

latter giving a bond, were held not to 289, it was held that a trial before 

constitute a trial. Franklin v. Wolf, arbitrators on a compulsory rule of 

78 Ga. 446. reference under the Pennsylvania stal- 

4. Stone v. Sargent, 129 Mass. 503, ute was not a trial within the meaning 
decided under Rev. Stat. U. S., § 639. of the removal act, since the award 
Accordingly it was there held that was conclusive only by the mutual ac- 
where an auditor appointed by consent quiescence of the parties, and it made 
of the parties had heard the cause, no difference that the rule of reference 
made his report, and returned it into was made by the petitioner for re- 
court, but no note of its filing had been moval. 

made, a petition for removal before 6. U. S. Savings Inst, v, Brock- 

any trial by the court or the jury was schmidt, 72 III. 370, where the court 

not too late. said: ** The most that could be said 

In Hess v. Reynolds, 113 U. S. 73, it is, it was a matter purely of discre- 

was held that a trial before commis- tion." See also Mabiey v. Judge, 41 

sioners to whom the cause had been Mich. 34; Wyly v. Richmond, etc., R. 

referred, their report being subject to Co., 63 Fed. Rep. 487; Knight v. In- 

confirmation or rejection by the court, ternational, etc., R. Co., 61 Fed. Rep. 

was not a trial. 90. 

Where by consent of the parties the 6. See infra, I. 40. b. (3) For Delay 

case was sent to a master, not for trial, in Filing Petition for Removal, 

d64 Volume XVIIL 



From State REMOVAL OF CA USES. te Fed«r»l Govts. 

pending,^ and it usually is made only to that court. But the 
practice has been suggested as more respectful to the state court 
to present the petition and affidavit first in that court and then 
file a certified copy thereof in the federal court and apply for 
removal thereon.* 

g. Petition for Removal. — veeaMity of Petition. — The 
** prejudice or local influence " Act of 1867,' embodied in section 
639 of the United States Revised Statutes, expressly required a 
petition for removal.* The Act of 1 887-1 888 does not in 
equally plain terms require one,* but " perspicuity is not a char- 
acteristic of the act." • The application is invariably made by 
petition, and probably an oral motion would not be entertained.''' 

1. 24 U. S. Stat, at L. 553, c. 373, § 2; But it may be that the state coart 
25 U. S. Stat, at L. 434, c. 866, § 2; will decline to pass upon the applica- 
Bellaire v. Baltimore, etc., R. Co., 146 lion. See Mason v. Interstate Consol. 
U. S. 117; Fisk V, Henarie, 142 U. S. St. R. Co., 170 Mass. 382; Beyer v. 
459; Bonner v. Meikle, 77 Fed. Rep. Soper Lumber Co., 76 Wis. 145; Wil- 
485; Schwenk v. Strang, 59 Fed. Rep. Hams v. Southern Bell Telephone Co., 
209; Kaitel v. Wylie, 38 Fed. Rep. 865; 116 N. Car. 558, where the court said: 
South worth v, Reid, 36 Fed. Rep. 451; " The state court had no riffhtto enter- 
Lookout Mountain R. Co. v. Houston, tain or consider a motion for removal 
32 Fed. Rep. 712; Rome, etc., Constr. based upon this ground." 

Co. V. Smith, 84 Ga. 238; Mason v. In- 8. 14 (J. S. Stai. at L. 558, c. 196. 

terstate Consol. St. R. Co., 170 Mass. 4. In Best v. New York L. Ins. Co., 

382; Blackwell v. Lynchburg, etc.. R. 2 Cine. Super. Ct. 329, it was held 

Co., ro7N.Car. 217; Williams v. South- necessary that the petition be signed 

ern Bell Telephone, etc., Co., 116 N. by the B^'^xtWc^iTil in propria persona^ but 

Car. 5S8; Beyer v. Soper Lumber Co., that a defect in that particular might 

76 Wis. 145. be waived. 

2. Per Brewer, J., in Short v. Chi- 5. 24 U. S. Stat, at L. 553, c. 373, § 
cago, etc., R. Co., 33 Fed. Rep. 114, 2; 25 U. S. Stat, at L. 435, c. 866, § 2. 
34 Fed. Rep. 227. The last clause of the second section of 

The application was first made to the act provides for removal on the 

the state court in the following cases, ground of prejudice or local influence, 

but respect for the state court was per- but makes no mention of a petition or 

haps not always the ruling motive: bond. The next section relates to re- 

Maher v. Tower Hotel Co., 94 Fed. movals on other grounds, and requires 

Rep. 225; Tacoma v, Wright, 84 Fed. a petition and bond, but by its terms 

Rep. 836; Bonner v. Meikle, 77 Fed. ** such cases as are provided for in the 

Rep. 4815; Tod V. Cleveland, etc., R. last clause" of the preceding section 

Co., 65 Fed. Rep. 146; Smith v. Crosby are not included in its operation. But 

Lumber Co., 46 Fed. Rep. 819; Hall v, the excepting clause just quoted is 

Chattanooga Agricultural Works, 48 probably broader than it was meant 

Fed. Rep. 599; Carson, etc.. Lumber to be. 

Co. V, Holtzclaw, 44 Fed. Rep. 785; 6. P^r Key, J., in Lookout Mountain 
Hakes v. Burns, 40 Fed. Rep. 33; Hills R. Co. v, Houston, 32 Fed. Rep. 711. 
V. Richmond, etc., R. Co., 33 Fed. '* A very unskilful and slovenly piece 
Rep. 81; Stix V, Keith, 90 Ala. 121; of legislation.** i'^r Deady, J., in Fisk 
Rome, etc., Constr. Co. v. Smith, 84 v, Henarie, 32 Fed. Rep. 420. 
Ga. 238; Pennsylvania Co. v. Versten, ** A slovenly piece of patchwork." 
140 111. 637; Meyer Bros. Drug Co. v, /'^ Wallace, J., in Vinal v. Continental 
Malm, 47 Kan. 762; Mason v. Inter- Constr., etc., Co., 34 Fed. Rep. 228. 
state Consol. St. R. Co., 170 Mass. 382; " The act is undoubtedly perplexing 
Blackwell v, Lynchburg, etc., R. Co., in its structural arrangement and very 
107 N. Car. 217; Williams v. Southern obscure on that account." Per Ham- 
Bell Telephone Co., 116 N. Car. 558; mond, J., in Gavin v, Vance, 32 Fed. 
Beyer v. Soper Lumber Co., 76 Wis. Rep. 85. 
145. 7. Still, in Short v. Chicago, etc., R. 

256 Volume XVIII. 



Fpom Btete REMOVAL OF CA USES. to Foderal Coorti. 

Ayerments of Petition. — In respect of the formal parts of the peti- 
tion, and its allegations as to the amount in controversy, citizen- 
ship of the parties, etc.,* the petition should be framed like a 
petition for removal upon the ground of diverse citizenship,* 
except that it must be averred that the plaintiff is a citizen of 
the state where the suit is brought, where the fact does not other- 
wise appear in the record.' The petition should aver positively 
the existence of prejudice or local influence.* 

Yerifloatioii of PetitioxL — It should be sworn to by at least one of 
the petitioners, or by some agent or attorney authorized to act 
for him or them other than the person who makes the supporting 
affidavit.* 

A. Bond for Removal. — The Act of 1887-1888 does not 
in unmistakable terms require a bond for removal on the ground 
of prejudice or local influence.* But the bond required to 

Co., 34 Fed. Rep. 227, Judge Brewer vised Statutes, but applicable now so 
casually remarked that *' no petition far as this point is concerned, 
need be filed." 4. Gold worthy v. Chicago, etc., R. 
1. Ai to ATornients of Citiieiiship see Co., 38 Fed. Rep. 769, holding that a 
Bradley v, Ohio River, etc., R. Co., 78 petition which merely averred that the 
Fed. Rep. 388, holding that if the peti- petitioner could not obtain justice in 
lion is defective in its averments the the state court was insufficient and 
court will allow a new and correct pe- was not aided by affidavits drawn in 
tition to be filed; Grand Trunk R. Co. the language of the statute. 
V, Twitchell, 59 Fed. Rep. 727; Brad- " The petition as well as the affidavit 
ley V. Ohio River, etc., R. Co., 119 N. should state the facts upon which the 
Car. 744.. And under the earlier 'Mocal removal is sought." Hall c. Chatta- 
prejudice" acts, see Liverpool, etc., nooga Agricultural Works, 48 Fed. 
Ins. Co. V, McGuire, 52 Miss. 227; Rep. 604, holding, however, that if the 
Elliott V, Stocks, 67 Ala. 290; Adams' petition ifails to state the facts consti- 
Express Co. t/. Trego, 35 Md, 47; tuting prejudice or local influence, but 
Amory v. Amory, 95 U. S. 187. is supported by a sufficient affidavit. 
If the diverse citizenship of the par- the court will allow it to be amended 
ties appears nowhere in the petition for on the hearing of the application, 
removal or elsewhere in the record at The allegation should be made in the 
the time of removal, the fact that it ap- language of the statute, namely '* that 
pears in the bond filed with a petition from prejudice or local influence he 
for a writ of error to a judgment of the will not be able to ubtain justice in 
Circuit Court, and in a bill of excep- such state court, or in any other state 
tions will not prevent the Circuit court to which the said defendant may. 
Court of Appeals from reversing the under the laws of the state, have the 
judgment and remanding the cause to right, on account of such prejudice or 
the state court. Grand Trunk R. Co. r. local influence, to remove said cause." 
Twitchell, 59 Fed. Rep. 727. See the form of the petitions in Camp- 
Under the Earlier ** Local Prcfjodice" belles. Collins, 62 Fed. Rep. 849; Collins 
Acts it was held that if the petition did z\ Campbell, 62 Fed. Rep. 851; Tod v. 
not contain any allegations as to the Cleveland, etc., R. Co., 65 Fed. Rep. 146. 
citizenship of the parties, the federal 6. Per Key, J., in Hall z\ Chatta- 
jurisdiction would be sustained by nooga Agricultural Works, 48 Fed, 
proper averments of citizenship in the Rep. 604. 

affidavit, since the latter must be con- An Approved Frecodent of a Verified 

side red as a part of the record. Bixby Petition will be found in Bonner v, 

V. Blair, 56 Iowa 416. Meikle, 77 Fed. Rep. 486. 

8. See infra, I. 23. c. Allegations of 6. 24 U. S. Stat, at L. 553, c. 373, 

Petition. §§ ^' 3* *5 U. S. Stat, at L. 435, c. 866, 

8. Harrison v. Shorter, 59 Ga. 512, §§ 2, 3. See comments on the act 

decided under section 639 of the Re- supra, p. 255, note 6. 

266 Volume XVIII. 



Vtm, 8Uta REMOVAL OF CA USES. to Fednal CowU. 

accompany a petition for removal on other grounds ^ should be 
executed and filed^ and would doubtless be deemed indis- 
pensable.* The bond should be actually presented before the 
time limited for removal has expired.* 

i. Affidavit for Removal — (i) Necessity and Sufficiency 

of Affidavit — HeoeMity and Snffieieiioy in General. — Both the Act of 
1867 and section 639 of the United States Revised Statutes 
required the petitioner for removal to make a prescribed 
affidavit.* An affidavit following the words of the statute was 
sufficient; it was not necessary to state the facts and circum- 
stances.* The Act of 1 887-1 888 provides for removal when 
prejudice or local influence '' shall be made to appear " to the 

1. See infra, I. 30. B<md for Re- of the United States Revised Statutes), 

imatal. holdinf^ that although the petition for 

9. See New Orleans, etc., R. Co. v. removal was filed before trial, no re- 

Rabasse, 44 La. Ann. 178. moval was effected as the bond was 

irnder Prior Local Prcjodico Aott. — not presented until the trial had be- 

The Act of 1867 did not require a bond, gun. 

but only '* good and sufficient surety;" 4. Act of 1867, I4 U. S. Stat, at L. 

but a bond was generally used. Tun- 559, c. 196; Rev. Stat. U. S., § 639, 

stall V, Madison, 30 La. Ann. 476; Best subdiv. 3, which required an affidavit 

r. New York L. Ins. Co., 2 Cine. Super, stating that he " has reason to believe 

Ct. 329. In Nye v. Northern Cent. R. and does believe that, from prejudice 

Co., 24 Hun (N. Y.) 556, an application or local influence, he will not be able 

for removal under Rev. Stat. U. S., to obtain justice in such state court." 

g 639, it was held not necessary that An Allegation in an Unverifled Petition 

the bond be signed by the petitioner, would not alone be sufficient to effect a 

but that it was a compliance with the removal. Thatcher v. Rankin, (Supm. 

law if the bond was executed by " good Ct. Spec. T.) 2 How. Pr. N. S. (N. Y.) 

and sufficient surety." But see Weed 459. 

Sewing Mach. Co. z/. Smith, 71 111. 205; Joint Affidavit. — In applications for 

Best V. New York L. Ins. Co., 2 Cine, removal under Rev. Stat. U. S., g 639, 

Super. Ct. 329. The provisions of sec- all the defendants were required to 

tion 639 of the United States Revised unite in the petition, and if a joint affi- 

Statutes in regard to the security to be davit was filed it was necessary to 

given on removal remained in force make it appear therein that the preju- 

after the enactment of the Act of 1875, dice, etc., applied to all the affiants. 

18 U. S. Stat, at L. 470, c. 137, which Gutwillig v, Zuberbier, 28 Fed. Rep. 

made new provision for security in 721, where, however, the affidavit was 

cases removed under that act. Balti- held sufficient in that respect, 

more, etc., R. Co. v. Bates, 119 U. S. 5. Fisk v, Henarie, 32 Fed. Rep. 421; 

464. And it was still necessary for the Hakes v. Burns, 40 Fed. Rep. 34; Hart 

bond to conform to the provisions of v. New Orleans, 14 Fed. Rep. 

the first-mentioned act. Gutwillig v. 180; Jones v. Foreman, 66 Ga. 371; 

Zuberbier, 28 Fed. Rep. 721; Suther- Stewart t^. Mordecai, 40 Ga. i; Meadow 

land V. Jersey City, etc , R. Co., 22 Valley Min. Co. v. Dodds, 7 Nev. 143; 

Fed. Rep. 356; Bates v, Baltimore, Geiger v. Union Mut. L. Ins. Co., 

etc., R. Co., 39 Ohio St. 157. Contra, (Marine Ct. Spec. T.) i City Ct. (N. Y.) 

Farmers' L. & T. Co. v. Chicago, etc., 237. Butas the acts required an affidavit 

R. Co.. 9 Biss. (U. S.) 133; Torrey v. of the petitioner that he has reason to 

Grant Locomotive Works, 14 Blatchf. and does believe,** etc., an affidavit 

(U. S.) 269; McMundy v, Connecticut merely declaring that he *' has reason 

Gen. L. Ins. Co., 9 Chicago Leg. N. to believe** was held insufficient. Bal- 

324. timore, etc., R. Co. tr. New Albany, 

S. St. Anthony Falls Waler-Power etc., R. Co., 53 Ind. 597. It was not 

Co. V. King Wrought-iron Bridge Co., necessary for the affidavit to allege the 

33 Minn. 186 (where the application for citizenship of the parties. Tunstall v, 

removal was made under section 639 Madison, 30 La. Ann. 471. 

x8 Encyc. PI. & Pr. — 17 867 Volume XVIII. 



I^om Steto REMOVAL OF CA USES. to 7«deral Gouu. 

federal Circuit Court.* The court must be legally (not merely 
morally) satisfied of the truth of the allegation that from preju- 
dice or local influence the defendant will not be able to obtain 
justice in the state court.* But the amount and manner of proof 
required in each case are left to the discretion of the court.' 
It may receive evidence upon the point by affidavits or by depo- 
sitions or by oral examination of witnesses.^ It is the uniform 
practice to file one or more affidavits or to state the facts in a 
verified petition.* It is clear that a general affidavit merely stat- 
ing the affiant's belief will not suffice.* The preponderance of 
authority in the federal Circuit Court is that a positive affirma- 
tion of the existence of such prejudice or local influence, without 
stating the facts and circumstances, will not be sufficient.^ 

1. 24 U. S. Stot. at L. 553, c. 373, 6. In re Pennsylvania Co., 137 U. S. 

§ 2; 25 U. S. Stat, at L. 435, c. 866, 451; Crotts v. Southern R. Co., 90 Fed. 

§ 2. Rep. 2; Collins v. Campbell, 62 Fed. 

8. Per Bradley, J., in In re Pennsyl- Rep. 850; Minnick v. Union Ins. Co., 

rania Co., 137 U. S. 451 ; Fisk v. Hen- 40 Fed. Rep. 369; Hakes v. Burns, 40 

arie, 142 U. S. 459; Crotts v. Southern Fed. Rep. 33; Short v, Chicago, etc., 

R. Co., 90 Fed. Rep. 2. R. Co.. 33 Fed. Rep. 114, 34 Fed. Rep. 

8. In re Pennsylvania Co., 137 U. S. 225; Goldwonhy v, Chicago, etc., R. 
451; Crotts z/. Southern R. Co., 90 Fed. Co., 38 Fed. Rep. 769; Amy v. Man- 
Rep, i; Parks v. Southern R. Co., 90 ning, 38 Fed. Rep. 536; Southworth r. 
Fed. Rep. 3; Bonner v, Meikle, 77 Fed. Reid, 36 Fed. JR.ep. 454; Meyer Bros. 
Rep. 487. Drug Co. v. Malm, 47 Kan. 764. See 

In In re Pennsylvania Co., 137 U. S. also County Ct. v, Baltimore, etc., R. 

451, the only proof offered was con- Co., 35 Fed. Rep. 166. Compare Hills 

tained in the affidavit of the gener&l v. Richmond, etc., R. Co., 33 Fed. 

manager of the defendant corporation Rep. 81. 

to the effect that from prejudice and 7. Second Circuit, — Amy v. Manning, 
local influence the company would not 38 Fed. Rep. 536, 868. 
be able to obtain justice in the slate Fourth Circuit. — Malone v. Rich- 
courts. The Supreme Court, /^r Jus- mond, etc., R. Co., 35 Fed. Rep. 625; 
tice Bradley, said: *' We do not say Crotts v. Southern R. Co., 90 Fed. 
that, as a matter of law, this affidavit Rep. 2. 

was not sufficient, but only that the Seventh Circuit, — Paul v, Baltimore, 
court was not bound to regard it so, etc., R. Co., 44 Fed. Rep, 514; Niblock 
and might well have regarded it as not v. Alexander, 44 Fed. Rep. 306; South- 
sufficient." worth V, Reid, 36 Fed. Rep. 451. 

4. Schwenk v. Strang, 59 Fed. Rep. Eighth Circuit, — Schwenk v. Strang, 

211; Malone v, Richmond, etc., R. 19 U. S. App. 300, 59 Fed. Rep. 209. 

Co., 35 Fed. Rep. 628. But see Franz v. Wahl, 81 Fed. Rep. 9; 

6. ** A duly verified petition is so Short v. Chicago, etc., R. Co., 33 Fed. 

far an affidavit that if it contains the Rep. 115, 34 Fed. Rep. 227. 

necessary averments a removal may Contra, holding such affidavit /r>M0 

be had thereon." Per Deady, J., in /<zrtV sufficient: 

Fisk V. Henarie, 35 Fed. Rep. 233. First Circuit, — Collins v, Campbell, 

In Bonner v, Meikle, 77 Fed. Rep. 62 Fed. Rep. 851. 

489, it seems that the removal was had Fifth Circuit. — Cooper v, Rich- 

upon a verified petition alleging the mond, etc., R. Co., 42 Fed. Rep. 697; 

facts constituting prejudice or local in- Brodhead v. Shoemaker, 44 Fed. Rep. 

fluence, but without a separate affi- 518. 

davit. Sixth a>f«iV. — Whelan v. New 

The Act of 1867 did not require the York, etc., R. Co., 35 Fed. Rep. 849; 

petition itself to be verified by affidavit. Minnick v. Union Ins. Co., 40 Fed. 

Bowen v. Chase, 7 Blatchf. (U. S.) 255. Rep. 369; Huskins v. Cincinnati, etc., 

See Sweeney v. Coffin, i Dill. (U. S.) 73. R. Co., 37 Fed. Rep. 504. But see Hall 

268 Volume XVIII. 



Fran SteU REMOVAL OF CA USES. to Pedaral Courtt. 

Such is evidently the opinion of the Supreme Court,* and 

emphatically that of the Circuit Court of Appeals for the Eighth 
Circuit.* 

V. Chattanooga Agricultural Works, 48 edge of these facts that induced Con- 
Fed Rep. 599. Kress to cha